Colombia: Recent labour case law ruled in favour of reinstatement of injured soccer player
In this recent case law from 28th March of 2023, the Supreme Court specified that the protection provided for in article 26 of Law 361 of 1997, which establishes mechanisms for the social integration of persons with limitations, does not simply operate in the face of a pathology, but requires that the degree of severity of the limitation be at least moderate, that is, with a loss of working capacity of at least 15% to 25%, a situation that is configured in this case.
According to the sports medical records, the club followed up the injury sustained by the player in a match and continued its evolution. Consequently, as the disability was proven at the time of the unfair dismissal, which was duly known to the employer, it must be understood that the presumption of discriminatory dismissal was activated in favour of the worker.
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This decision is very significant for employers in the regarding of unfair dismissals in the sports sector due to injuries that can lead to the presumption of discriminatory dismissal. In this context, the employer had the burden of proving the existence of a fair cause on which the dismissal decision was based, otherwise it would be ineffective.
In accordance with the above, the dismissal was declared ineffective, with the precision that its legal implications are the immediate reinstatement and the reestablishment of the conditions of employment, under the fiction that the worker was never separated from his position of the football team and so it was indicated by the Supreme Court of Justice.