To infinity and beyond!!! (On art. 1 of the law 25.323 and compensation for death)[*]

This short comment, beyond how striking the title could be when referring to a children's film[1], It should serve to reflect on the crisis that legal texts are currently suffering.

Because as soon we will see, in more than one case the legal text expresses a specific content but when it lands in the courts it is interpreted in a capricious way; or even worse, is directly ignored, as it happens in the failure that we commented.[2]

1. The case

A worker died of a heart attack in the Republic of Colombia while he was providing services for his employer in that country. As a consequence of the death and beyond other issues that were debated in the file, the widow claimed the correct payment of the compensation for death, invoking that it had been calculated without considering the true seniority of the employee or his full remuneration.

But the two fines provided for in the law were also claimed 25.323 (arts. 1 Y 2) those that were rejected in the first instance. Later one of them (that of art. 1) was accepted by the court of appeal. The latter was what triggered this job.

It is at least strange that a claim for such fines has been promoted when the simple and straightforward text of the law 25.323 ties the birth of both aggravations to a dismissal.

But it is stranger that this claim has been received judicially, when also, one of the chambermaids proposed a different solution adjusted to the text of those norms.

2. Failure

a. The ruling judge when he had to deal with the appeal regarding the rejection of art. 1 of the law 25.323 was blunt in saying that "the norm cannot be limited only to the case of termination of the employment contract due to dismissal, rather, its lofty purpose of combating clandestine work must be addressed…”

After that statement, and as a foundation, cited jurisprudence and gave a more than forced detour as to why, Finally, the fine of art should be applied. 1 of the law 25.323 in the event of death. In that sense, the judge said that art. 248 of the LCT had "the same rate structure" as the severance pay and which in turn referred to art. 247 of the same regime, the one who ultimately, It was him 50% of art. 245, rule "that includes art. 1 of law 25,323. "

For this reason and “because the analogy is applicable, since the company in a circumstance as special as that of cars, only partially paid the compensation for death ”it was necessary to apply the fine.

b. How it looks, the judge elaborates his reasoning starting from considerations external to the legal text instead of from it.

It does not escape me that in terms of interpretation of the law there are multiple criteria that could be applied to this deductive process - sometimes contradictory[3] among them- but they all have in common that they start from the legal text. Because it is clear that without text there is nothing to interpret: the raw material of interpretive analysis is missing.

And when a norm “does not require effort to determine its meaning, must be applied directly, regardless of considerations that exceed the circumstances of the case expressly contemplated in the standard, since otherwise it could arrive at an interpretation that, without declaring the unconstitutionality of the legal provision, is tantamount to dispensing with it. "[4]

c. In the case at hand, what is resolved by a majority is not the possible interpretation of a legal text but a manifest departure from its letter.

Because both standards (arts. 1 Y 2 of the law 25.323) They are clear in that they establish the existence of a dismissal as the source budget for the fines provided therein.. They do not refer to generic terms as occurs in the cases of arts. 18, 121, 156 of the LCT to cite just a few examples.

So if the legislator chose that term, it is because he chose, within the range of possibilities available to me at that time, by that particular mode of extinction.

And that decision, in the particular case of art. 1 of the law 25.323 has a concrete and consistent reason: it is a subsidiary fine of art. 15 of the law 24.013 for when the employee could not act in time within the framework of the National Employment Law due to, precisely, of the dismissal.[5]

d. Accepting the criterion of the majority of the Chamber would imply admitting then that the fines of the law 25.323 are applicable to the cases of resignation, retirement, termination by mutual agreement, etc.

But also, It should be noted that the court has not declared the rule unconstitutional (neither ex officio nor much less at the request of a party) aspect that instead, The judge of degree did take into account when dealing with art. 2 of the law 25.323, by saying that "Neither is there an oblivion or an irritic distinction that allows invalidating the norm in order to extend its scope of action, specifically fixed in a matter that, due to its sanctioning nature, must be interpreted restrictively…”

Namely, The majority of the court did not explain on what basis it justified such a flagrant departure as the one carried out and nothing less than to extend the effects of a criminal sanction.

It has created a different rule changing the term "dismissal" by "termination". Has created a rule after the facts of the process. It is a serious violation of a fundamental guarantee of citizens, such as not being punished without the law prior to the fact of the process. (art. 18 of the CN).

It is what Carrió calls an arbitrary sentence because of its grounds because they were handed down by judges who, when dictating, they assumed the role of legislators and did not feel limited by the legal order.[6]

In that intelligence, the way to the extraordinary instance, in my opinion, is enabled without obstacles.

e. Finally, it remains to deal with the fine of art. 2 of the law 25.323 where the same ruling judge now does it contradictorily, although not due to the absence of dismissal - which would have been the logical thing to do- but because the intimation issued during the birth of the conflict came from the widow and not from the worker (what was evident based on how the link was terminated).

He argued - through the jurisprudence that invokes as a basis- that since it was not the worker who made the request to pay compensation as required by the law, the legal requirement of origin had not been met. Furthermore - citing different jurisprudence of the same Chamber- affirmed that as this norm was a penalty, it was not susceptible of being interpreted in an extensive or analogical way.

A) Yes, for the majority of the Chamber the text of art. 1 of the law 25.323 could be altered without any major grounds and even used the analogy. But upon reaching art. 2, his text turned stony, of literal interpretation and without the possibility of being altered by way of analogy because it is a sanction and therefore, of restrictive interpretation.

Namely, In one case, the majority of the court considered a legal text only as merely indicative and that, although punitive, it allowed an analogical and broad interpretation, but right away, on a text of similar simplicity and nature, understood the opposite.

It is an insurmountable contradiction, what, again, makes the sentence arbitrary because it is self-contradictory.[7]

3. conclusion

Clearly, in this case, much progress has been made beyond the reasonable limits of normative interpretation., forcing them to the extreme and reaching interpretations that, as in the title phrase, are beyond the confines of the interpretive Universe.

Accepting this type of interpretation as possible puts in check, nothing less, that at the base of the structure of the entire legal framework: the text of the rules.

Texts by virtue of which all citizens establish our legal relationships, many times postponing or sacrificing individual rights in pursuit of the common good.

[*] Original article published on on the day 18/06/2020. Link:
[1] The title phrase was spoken by the animated character Buzz Lightyear (a toy astronaut) in the movie "TOY STORY" (Pixar – 1995) who received its name in honor of the astronaut who was part of the crew of the first trip to the Moon, Edwin Eugene Aldrin, nicknamed "Buzz". In the film, this character affirmed in front of other toys that he had the ability to fly. To prove it to the incredulous dolls, he jumped into the void announcing that "flight" solemnly pronouncing the phrase of the title.. The reality was that it did not fly but bounced off different objects. But as Lightyear moved from one point to another with his eyes closed he was convinced that he was actually flying.

[2] “DALLAGLIO, Cristina J. c. CRONIMO S.A. s. Compensation for death ", CNTrab., Room VI of 23/10/2019 (File. N° 44.649/2011).

[3] "Interpretation and application of labor standards" ETALA, Carlos A., P. 63, Ed. Astrea, 1ª reprint. 2007.

[4] CSJN in re “Martínez, Leonardo Matías c. Galeno Aseguradora de Riesgos del Trabajo S.A. " of the 30/10/2018 (Faults 341:1443)

[5] This explanation was also highlighted by the chambermaid who voted in dissent., but she was not attended by her colleagues.

[6] "The extraordinary appeal for arbitrary judgment" CARRIÓ, Genaro R. and CARRIÓ, Alejandro D., T° I, P. 58, Ed. Abeledo – Perrot, 3ª ed.

[7] "The extraordinary appeal for arbitrary judgment" CARRIÓ, Genaro R. and CARRIÓ, Alejandro D., T° I, P. 58, Ed. Abeledo – Perrot, 3ª ed


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