1. Legal nature and concept of ius variandi.

To understand the legal nature of ius variandi, we must first refer to the power of direction that the employer has in the company. This power is prescribed in Article 40 of the Labor Code of the Dominican Republic, which provides the following:

Art. 40.- The necessary powers of direction corresponding to the employer must be exercised on a functional basis, serving the purposes of the company and the demands of production, without prejudice to the preservation and improvement of the personal and patrimonial rights of the worker.

The power of direction is a set of legal powers by which the employer determines the modalities of the labor provision. That is, the power to give orders on the mode, time, and place of the condition of the service.

In short, the power of direction can be defined as the broad and general power that the employer must establish the form of his organization and the operational, technical, and disciplinary guidelines on which it will work.

Although it is a general and broad power, the power of management has its limitations, since the orders that derive from this power must guarantee the moral, physical, and economic integrity of the employee. Which means that such orders do not harm the rights consecrated in labor laws in favor of the worker, much less violate their dignity and privacy.

The legislator prescribes in article 41 of the Labor Code the principle of ius variandi, according to which:

Art. 41 - Employers are empowered to introduce those changes necessary for the modalities of the provision. These changes do not imply an excessive exercise of this power, alter the essential conditions of the contract, or cause material or moral damage to the worker.

The article above establishes the power recognized by the employer to vary unilaterally, within certain limits, the conditions, form, and mode of the provision of the service by the employee.

We reiterate that it is a power that derives from the Employer's Management Power to allow certain discretionary powers to improve services for the benefit of production. Provided that the fundamental clauses of the contract are not modified.

2. Scope and restrictions on the exercise of ius variandi.

As we have explained, the purpose of ius variandi is to allow the employer to change the employment contract terms. Exercising this power may result from normal work relationships. It can also be an emergency. Likewise, it may be disciplinary or result from functional, operational, or administrative needs. Finally, it can be due to a technological or economic requirement.

However, the changes the employer can introduce to the modalities of providing the service provided by the employee under article 41 of the Labor Code have their limitations. Indeed, the employer must make practical, non-arbitrary, or abusive use of this right, which must always be justified in the company's needs, in the demands of production, or in logical, reasonable ways.

 

For these reasons, changes to the employment contract that the employer can make in the exercise of ius variandi may NOT:

a)     Have their origin in arbitrary, capricious, or persecutory decisions but must respond to the objective and functional interest of the company; that is, be based on objectively understandable reasons.

b)     Nor affect the primary or substantive conditions of the employment contract, in principle, defined as the time, place, and specific way in which the provision of the service was initially agreed;

c)      Nor affect the employee's moral, material, or economic interests.

As an example of situations that violate the principle of ius variandi, our Supreme Court of Justice recognizes cases where the employer, unilaterally, decides to alter the conditions of the contract, causing economic, material, or moral damage. For example, the change of task, unrelated to their activities or that, endangers the worker's safety. Or that implies a partial reduction of the salary. Or how it should be received or affect the contract's fundamental conditions related or connected with the service borrowed.

Moreover, our Supreme Court of Justice has declared as violating practices of ius variandi, those by which the employer unilaterally modifies the employees' working hours because this aspect constitutes an essential condition of the employment contract. Also, the Supreme Court of Justice considered a violation of ius variandi modifying the way of calculating workers' wages by changing from a fixed and variable salary system to an exclusively variable system even though the worker accrued amounts higher than those accrued initially under the original design.

To all this list, we could add cases in which the employer changes the service provided by the employee, lowers the hierarchy, technically or professionally degrades the employee, or places him in humiliating situations.

Notwithstanding the decisions mentioned above, our Supreme Court of Justice admits the possibility of the employer to unilaterally modify the conditions of the employment contract, even when this modification implies a partial reduction of the service provided by the employee in his employment contract job. In this sense, there is a sentence that expressed as follows: "The ius variandi is the power that under certain conditions helps the employer or employer to change, change and even partially suppress the work of his subordinates in the company."

In this last decision, The Supreme Court of Justice has considered that the mere fact of eliminating part of the functions of an employee does not necessarily entail a loss against him. Still, on the contrary, it may imply an advantage, if the salary conditions and the decision is justified on objective functional and operational reasons.

In the event of a violation of the ius variandi principle, the affected staff will have the following legal measures available to them:

a)     They can claim directly from the employer the fulfillment of the individual or collective labor contract;

b)     Report the situation to the labor authorities, and require the latter to intervene so that your employer complies with the corresponding labor standards;

c)      Demand before the courts for the restoration of the working conditions originally agreed between the parties and the repair of the damage caused to their detriment;

d)     Resign and claim their rights before the courts of justice.

3. Exceptional cases that escape the application of ius variandi.

Notwithstanding all the above, there are exceptional situations that escape the principles of ius variandi. As an example of this group of conditions, Professor Lupo Hernández Rueda cites the following cases.

a)     If the decision to change the conditions of the service by the employer refers to secondary changes;

b)     Suppose the causes that motivate the changes are general or affect a sector or the entire business sector. In that case, the corrective measure implies the preservation of a company and the financial balance of many companies or the country's economy.

For his part, Professor Rafael Alburquerque adds other exceptional situations to this list, such as:

c)      Suppose the change that is made is supported by the parties' prior agreement at the time of signing the employment contract. Or if the parties have agreed to the modification during the execution of the employment relationship. Because, in both cases, it is a question of mutual consent.

d)     If the change is based on the work carried out, as would be the case with sellers and distributors of products.

e)     If the change is based on a generally accepted business practice or use.

From the enumeration mentioned above, the most useful exceptional situations for this study are those provided for in literals c), d) and e) since through them, the author mentioned above contributes a doctrinal opinion that relaxes the restrictive nature with which jurisprudence has traditionally applied the exercise of ius variandi in labor relations.

We share the criterion of Professor Alburquerque, that if the employer and the employee have signed an employment contract where they have expressly agreed on the modifications are beyond the scope of ius variandi that they will do in the course of the employment relationship. We endorse this opinion since it is NOT about the application of ius variandi. But about respecting the terms agreed by mutual consent by the parties.