He clarifies that the daily salary for the payment of monthly remuneration when not working all month must be calculated by dividing the annual by the 365 days of the year. The Supreme Court, in a ruling of November 25, 2019, thus recalls its doctrine in the cases of workers who in the months of 31 days have not been active for the entire month, due to having been in a situation of temporary disability and joining the company once the month started, for having started the labor benefit once the month started or for joining the company after a period of leave once the month started.
“The remuneration system consisting of dividing the annual salary of the agreement by 360 days (12 months of 30 days each month, understood as a standard month), so that the company calculates all the months of 30 days, implies that the workers who are find in the aforementioned cases stop receiving a day’s salary in the 31-day months, which cannot be accepted in the employment contract governed by the principle of reciprocity and onerousness, “says the ruling.
You have to divide the annual salary by the 365 days of the year -366 in the case of a leap year- and multiply by the number of days worked
“And, as such, generator of obligations for both parties, being a basic right of the worker the perception of the agreed or legally established remuneration in accordance with the provisions of article 4.2 f) of the Workers’ Statute,” says the lawyer. Alfredo Aspra, partner in the Labor area of Andersen Tax & Legal.
According to the Supreme, what is appropriate, therefore, when the worker is not active for the entire month -when it is 31 days- for the purposes of calculating the salary in that month, will be to divide the annual salary between the 365 days of the year – 366 in the case of a leap year, an amount that must be multiplied by the number of days worked. “In this sense, this Chamber has ruled repeatedly to set the daily salary regulating compensation for dismissal in multiple sentences,” says Alfredo Aspra.
“We must not forget that the figure of 360 days is the result obtained by multiplying the two divisors used (12 by 30) and that it responds to the erroneous criterion of ignoring that the monthly payment has the real average of 30.42 days (365/12 ) and attend to the artificial 30 days often used by forensic practice with unequivocal support in the original wording -in force until Decree 1836/1974, of 31-5- of article 7 CC.
This precept pointed out that “if the laws speak of months, it will be understood that the months are thirty days. If the months are determined by their names, they will be computed by the days that they respectively have and that the legislator also sometimes establishes” . Thus, for the determination of the regulatory base in IT situations, in accordance with article 13 of Decree 1646/72.
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