The principle of immutability of the dispute

With judgement no. 22127 dated 2 November 2016, the Supreme Court of Appeal once again pronounced itself on the interpretation of the non ultra petita rule with respect to the charge filed and the charge on which the disciplinary action is based. In the case in question, a worker did not go to work because he claimed he was a victim of harassment and that he would return to work when such harassment was stopped. Given that the worker did not return to work, the Company demanded that he submit his reasons and resume work without delay. The employee repeated the reasons for which he refused to go to work and, given that the employee did not return to work, the company dismissed him for just cause. The worker filed appeal against his dismissal claiming breach of the principle of immutability of the dispute, since he had been dismissed for an absence that was longer than that challenged. In rejecting the claim of the worker, the Supreme Court confirmed the prevalence of the actual duration of worker’s absence from work with respect to the number of days challenged in writing, also taking into account therefore the information that had emerged during the disciplinary proceeding and not merely those made subject of the dispute. In other words, the non ultra petita rule with respect to the charge claimed and the charge on which the disciplinary penalty is based cannot be considered as violated when the fact challenged in the disciplinary measure remains unchanged and only the appreciation and overall evaluation of the same change.