In resolving a contradiction in theses between courts, the Supreme Court of Justice of the Nation (SCJN) issued a jurisprudence that establishes that when a worker files a lawsuit for the payment of a pension for unemployment in advanced age or old ageyou must exhaust the conciliation stage before initiating a trial before a labor court.
This same criterion will be applied to demand the return and payment of contributions to the Mexican Social Security Institute (IMSS), Institute of the National Workers’ Housing Fund (Infonavit) and those related to the Retirement Savings System (Afores).
In this way, the jurisprudence issued by the Court will be a criterion that all courts in the country must observe. Therefore, if a worker wants to start a lawsuit without having first gone through the conciliationthe court will refer it to the competent authority to exhaust the pre-judicial processspecialists agreed.
The reform to the Federal Labor Law (LFT) of 2019, which established a new conflict resolution mechanism with a conciliation stage as a pre-judicial requirement, also included at least nine situations in which workers are exempt from exhausting the phase. conciliation and start a lawsuit before a labor court.
Among the cases exempt from exhausting conciliation before the Federal Center for Conciliation and Labor Registration (CFCRL) or local centers, are those related to social security benefits for work risks, maternity, illnesses, disability, life, nurseries and benefits in kind and work accidents.
In that sense, the Second Chamber of the SCJN ruled that “if the legislator expressly distinguished which social security conflicts were exempt from the mandatory reconciliationit is unquestionable that the exceptions must be specified in a restrictive manner, without the possibility of extending them to other hypotheses”.
Under this logic, if the reform did not establish the pension for unemployment in advanced age and old age, as well as the return and payment of social security contributions as matters exempt from exhausting the conciliation, it is because the legislators considered that they are reconcilable aspects.
“If it is concluded in a different sense, it would give guidelines to extend the assumptions of exception to hypotheses that are not explicitly contemplated in the law, with which the path of reconciliation it would lose the obligatory character that was printed with the labor reform”, argued the highest court in a statement.
In the previous model of justice, the 70% of accumulated cases in the Federal Board of Conciliation and Arbitration (JFCA) was regarding lawsuits against public agencies, among which IMSS, Pemex, CFE and Infonavit stand out.
Specialists in labor law and social security explained that these conflicts arise when the worker initiates the process to retire because he already meets the age or the weeks of contributions, and the IMSS denies him the pension because “the accounts do not match.”
This usually occurs due to poor accounting at the Institute and because the workers do not have sufficient records to prove their right to pension due to advanced age or old age. “They don’t believe you are over 65 years old or they don’t believe you have the weeks of contributions,” explained Sara Morgan, labor lawyer and independent consultant.
In practice, the jurisprudence treats them differently from the social security benefitsspecialists agreed. For example, if a person claims a pension for a work accident, he can go directly to a labor court, but if it is a severance pension, conciliation will be mandatory.
Between controversy and injustice
From the perspective of Sara Morgan, the Court’s resolution has an “unfair” application, since the older adults They are the ones who face these cases in which the IMSS denies them the pension and they are the ones who would have to go through one more process to obtain a right that they have already earned.
But that is not the only scope of the jurisprudence, the specialist stressed that pensions in legal matters they are known as a “point of law”; that is, it is something that is granted or denied, without middle terms. “If I already asked for it and you already denied it to me, what am I going to reconcile, half of what corresponds to me or a third? Well no, this is a point of law, it’s all or nothing. Reconciliation is sometimes a midpoint, what am I going to reconcile? What means will they pay me? ”, She questioned.
María Ascensión Morales, professor of Labor Law and Social Security at the UNAM Law School, agreed that the jurisprudence translates in practical terms into a delay in administration of justice.
“This will mean that far from having prompt justice, it will be complicated. send to the potential pensioners to a stage where there will be no conciliation, because there is not going to be, there is no point, “said the specialist.
Ascensión Morales explained that although the conciliation stage is mandatory for bosses and employers, in cases of denial of pensions it is a conflict between the insured and the insurer. However, the 2019 labor reform maintained some vices, such as fitting the social security disputes within the workplace.
“There is no interest in regulating and imparting justice in matters of social security. The individual conflicts social Security They were created to be a quick procedure and now it turns out that we have knocked them down so that they can now reconcile. You just have to ask yourself, is it going to reconcile Social Security? Will they reconcile the Afores? And something very important, if you have 60,000 or 70,000 pesos saved for your pension, are you going to reconcile so that they give you 50,000 or 40,000? ”, She questioned.
For his part, Carlos Ferran Martínez, managing partner of the firm Ferran Martínez Abogados, affirmed that the jurisprudence it is “controversial” because it is linked to the last stage of people’s lives. “I think that it generates an important debate to say that in a social security situation, I cannot directly access the court and have to go through the conciliation stage.”
Although its practical application will have to be observed, Carlos Ferran considered that an in-depth analysis of the resolution is needed, taking into account that social security It is one of the most holistic rights in the last stage of people’s lives, “the part in which I no longer want to work, but live from what I have already generated.”
In this sense, the specialist stressed that conciliation is a process in which interests are equalized and each party has to yield, for this reason it is necessary to closely monitor the application of case law and be aware of the criteria issued by the Federal Center for Conciliation and Labor Registration in this regard.