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SJN: Waiver in accordance with the principle of the primacy of reality
We consider of utmost importance that the employers of the country take into account this criterion that may be definitive in the viability of the defense of labor lawsuits based on the resignation from work.
In our country, unjustified dismissal has been one of the main causes of individual labor conflicts. According to the National Institute of Statistics and Geography (Inegi) during the year 2022, 85.8% of the cases that reached labor courts were for such reason.
In this regard, the Third Collegiate Labor Court of the Seventeenth Circuit determined that according to the principle of primacy of reality, which refers to the fact that the judge must give preference to the facts, more than to the documents offered in trial always in benefit of the worker; the labor courts must analyze the verisimilitude of the resignation, taking into account the particular characteristics of the case and the personal conditions of the worker, such as: seniority, position, age, preparation, economic solvency, payment of severance, among others.
The court based its decision on the third paragraph of article 17 of the Mexican Constitution, which establishes that: "provided that equality between the parties, due process or other rights in the proceedings are not affected (...), the authorities must give priority to the solution of the conflict over procedural formalities".
Likewise, it indicated that in accordance with Article 841 of the Federal Labor Law, the labor courts must issue their sentences on the basis of known truth and good faith, appreciating the facts in conscience, without the need to subject themselves to formalisms or rules in relation to the evidence provided by the parties, but always expressing the motives and legal grounds on which they are based, being clear and congruent with the claims deduced in the trial.
In this way, both laws provide the guideline so that in case of alleged resignation or alleged unjustified dismissal, the Labor Court has the obligation to analyze its verisimilitude, assessing the conditions of the workers.
This jurisprudence was published in the Judicial Weekly of the Federation (SJF) with digital registry 2027272 on September 22, which is why it is considered of mandatory application as of Monday, September 25, 2023; and it is important that companies comply with these new standards.
Amendment to the General Law of Commercial Companies. Meetings and Sessions by remote and technological means.
On October 20, 2023, a decree amending several provisions of the General Law of Commercial Companies ("LGSM") regarding meetings and sessions held by technological means (the "Decree") was published in the Federal Official Gazette.
The amendments to the LGSM are mainly focused on recognizing and allowing the holding of partners’ or shareholders’ meetings ("Meetings"), as well as meetings of the administrative body ("Sessions") of the companies, remotely through the use of electronic, optical or any other technology ("Technological Means").
In this regard, the points to be highlighted are the following:
1. At the time of incorporating a company, it is now an indispensable minimum requirement that the bylaws establish the rules to be followed so that the Meetings and Sessions, respectively, may be held through Technological Means.
The Technological Means are allowed as long as: (a) they allow a simultaneous participation and a correct interaction among the partners, shareholders or directors; and (b) there are means to evidence the identity of the participants and of their vote.
2. The holding of Meetings or Sessions through Technological Means is allowed mainly when the bylaws expressly provide for it or, if not expressly provided, when all the shareholders agree that it be held in this manner.
3. The holding of Meetings or Sessions through Technological Means shall not be understood as if they had been held outside the registered office or corporate domicile of the company in question and, therefore, they shall be fully valid.
4. Minutes shall be taken of each Meeting, which shall then be recorded in the respective corporate book, and shall be signed by the President and Secretary of said Meeting.
5. Additionally, limited liability companies(sociedades de responsabilidad limitada) are required to publish their calls for partners' meetings through the electronic system of the Ministry of Economy.
We remain at your service for any doubt you might have regarding the application of the provisions of the such Decree.