Liability due to employer´s fault The contradictory civil and contractual nature of the liability regime

Abstract

Liability due to employer´s fault (art. 126 of the Substantive Labor Code), according to the Labor Cassation Chamber of the Justice Supreme Court, belongs to a liability regime of a civil and contractual nature that has its origins in the breach of the security and protection obligation provided in Article 56 of the SLC; however, after analyzing this regime, contradictions are evident with the characteristics that the Civil Code and jurisprudence foresee for the liability originated by the causation of harm in the event of the breach of a contractual obligation, specifically, the one that refers to the legitimation to claim harm repair which, by contractual means, lies in the parties of the contract or its heirs; while in the liability due to employer´s fault, the legitimation reaches everyone who proves that has suffered harm, regardless of whether it is a party to the employment contract.

The outcome of the research study, in which a documentary review with critical and qualitative approach of national jurisprudence and doctrine was carried out, shows that the position of the High Court has chosen different stages in its historical development, and that doctrinants have summed to the discussion as well trying to define the legal nature of liability due to employer´s fault.