The restructuring of the business system and institutional changes in the organization of the State, as announced by the government, involves the reduction of payrolls and declarations that workers are to be laid-off. In this process workers are declared unsuitable (lacking talent for their job) in order to sever the employment relationship.
The effects of the declaration of lack of suitability, and thus “availability” — that is the worker will be laid-off — differ. Both figures are recognized in the Labor Code (CT) as reasons for termination of the labor contract. However, they do not have the same origins or treatment with regards to wages.
The worker declared “available” — laid-off — has more protection under the law. The CT states that “an equal rating takes into account age, and equal qualifications plus seniority give more rights to the older worker.”
Those with partial disability, men over 50 and women over 45, can not be declared “available” as long as an entity has vacant jobs in which they can be employed, in accordance with their qualifications and ability to work.
These conditions do not apply to workers declared unsuitable. Skill in the profession is a requirement related to job tenure of an occupation. The legislation defines it as “Demonstrated Competence.” A management assessment takes into account a judgment of the worker’s performance on the job. When performance is considered lacking, the state agency terminates the employment relationship.
The “available worker permanently relocated” — that is a competent person who is laid off — receives the national average wage, 414 Cuban pesos (about $17 in freely convertible currency), or the wage of the position or occupation they have been laid-off from, whichever is greater. Where there is no possibility of their being offered another job, they are sent to work in construction or agriculture, but with the same wage guarantees.
The person who is not suitable — that is declared not competent to perform their job — receives the wage of the new position to which they are assigned. In practical terms, the State, the only legal employer, chooses this latter option as it then has less responsibility and fewer guarantees it must meet.
In the case where there is no possibility of reassigning the ineffective or reclassified person within the same workplace, their salary is guaranteed for two months, starting from the date on which they are laid off.
In the case of workers who are declared laid-off but who “unreasonably” refuse accept it, they have only the right to receive the guaranteed wage for one month after they are laid-off. If a person is declared “unsuitable,” the labor contract is terminated with no right to receive any wages.
Thus, by declaring excess workers “unsuitable”, the State, which says it has a policy of full employment in the labor system, frees itself of commitments to comply with the legal guarantees of Cuban workers.
October 21, 2010