What if I don't go to work because I don't get paid?

Article 29 of the Workers' Regulation obliges the company to pay workers' wages on time and not exceeding one month. Even so, in many cases, companies fail to pay employees or delay payments for various reasons. In this case, it is normal for workers to consider not going to work and to seek advice about their options from a labour lawyer.

According to the Labour Regulations, the worker can request the termination of the contract for delay or non-payment of contractually agreed wages. In this case, compensation is also paid as in the case of unfair dismissal.

Faced with non-payment, what options do workers have?

The best option when you are not paid is to continue working and wait until payments are resumed. If it is a difficult time for the company, another option to consider is to reach an agreement with the employee. Alternatively, you can ask for the termination of your employment contract, which would be classified as unfair dismissal.

In these cases, if you simply want to demand the money you owe, you must first submit a mediation paper and then, if no agreement is reached, file a request with the Social Court explaining the concept and the total amount of the claim. This would be the last option. Since the complaint is filed in court, it may take months for the trial to be resolved, but employees must go to work until a judge rules.

What happens if you decide not to go to work?

This option is not recommended at all, and if a worker does not show up, even because he or she did not receive adequate pay, he or she may be accused of resigning from his or her job and consequently voluntarily dismissed.

Alternatively, workers may be subject to disciplinary dismissal, which means that they are not entitled to compensation or unemployment benefits. In either case, if workers leave the company, they have one year to claim them. If the year is exceeded, the company would no longer be obliged to pay any fees.

How would you proceed?

If the contract is terminated with the corresponding wages, a claim must be filed with the Arbitration Centre. If no agreement is reached or the company does not show up, you will have to file a lawsuit in court for the judge to rule in favour of the worker or the company.

During the legal proceedings, is it possible to stop working?

Even if the judicial procedure is in process, the worker must continue to go to work. However, there are some cases in which it is possible not to go to work while awaiting trial, for example when there is an authorisation from the judge; in order to demand this precaution, it is necessary to demonstrate the lack of payment and that these violations violate the dignity and integrity of the workers, i.e. that they violate fundamental rights. Judges must explicitly authorise, and although this is difficult, they sometimes grant the measure. It is considered serious if it exceeds four months of non-payment.

Another option by which a worker could stop attending work would be to announce an act of conciliation; this is a risky option and may lead to disciplinary dismissal for not showing up for work or to the company dealing with voluntary dismissals.

On the other hand, taking voluntary leave could also be another option for not coming to work. In this way, employees can stop working in the company and look for work in other companies. This option is better than requesting voluntary leave as you have the possibility to return to your job, although this is often complicated. However, with this option there is no possibility of claiming unemployment benefits.

What happens if a voluntary resignation is submitted?

If an employee leaves voluntarily, even if it is due to a breach by the company, he/she will leave without pay and will not be entitled, as mentioned above, to claim unemployment benefits at that time. Therefore, opting for voluntary resignation is only advisable if it is guaranteed that the worker has another job, avoiding the risk of being left without severance pay and unemployment benefits.

What rights does the worker have after the trial?

If the lawsuit is won, article 303 of the Law regulating social jurisdiction states that the worker will have two options:

• Do not return to the company and apply for unemployment.
• Continue in the job.

The choice to be made must be in writing or by appearance in court, and must be made within five days of notification of the appeal to the employer.

If the company subsequently wins the appeal, the employer must notify the employee, within ten days of the date of the communication, of the date of reinstatement to be made within a period of not less than three days following receipt of the letter.