In dubio pro operario
February 10, 2015
Several laws have been enacted in Panama to regulate contracts and relationships between employers and employees. These involve specific principles to use in a labour dispute involving a disadvantageous position for the workforce.
Before a dispute, the judge must take into account one particular legal principles, which has been created to promote an equal relationship. The principle is mainly to protect the worker, who is presented as the legally weaker party compared with the more powerful employer. The principle in dubio pro operario was set out in the Labout Law for several reasons. First, the worker is subject to the employer’s disciplinary power, direction, and orders. This is a form of economic dependence for the employee, who receives benefits such as a salary, paid holiday, health insurance, sick pay, and retirement contributions.
In addition, the employer provides the employee with a contract under several provisions, terms, and conditions of employment (such as job title, work location, date, amount and frequency of pay, hours of work, holiday entitlement), so it is the employer who is more able to negotiate.
The Labour Code contains the principle in dubio pro operario in its article 6. Panama’s employment tribunal has made several judgments on its application and effects, where there are different ways of interpreting a law. However, it is crucial that there is doubt and different points of view regarding the application of a labour law in a legal case.
Nevertheless, in dubio pro operario has nothing to do with the appraisal and assessment of evidence. It does not apply to the assessment of evidence or where there is a claim about the facts of a labour process; the judge should make an evaluation according to his or her own critical faculties and reasonable judgement.
Fundamentally, the court decides whether the claim has merit before the evaluation of evidence (such as testimony, documents, or expert witness). The judge must then issue a judgment according to his or her legal opinion on any doubts regarding the meaning of a law, following two main rules: (i) there must be real doubt as to the meaning of the law, and the judgment should not be made to create institutions for the employee, even if there is a legal case in accordance with the evidence; (ii) the principle does not apply to the questions regarding the evidence of the facts or procedural law.