The exceptional and temporary nature of overtime: Commentary to judgements delivered by the Supreme Court, Rol N° 26119-2019 and Rol N° 36498-2019

Abstract

Two sentences handed down by the Supreme Court are evaluated on the occasion of the knowledge of two appeals for unification of jurisprudence. The purpose of those latters was to determine whether or not stipends paid for overtime should be considered within the basis of calculation of the last remuneration accrued, for the purposes of payment of compensation for termination of the employment relationship. All this, based on the fact that the extraordinary day is frequent and permanent, not sporadic or eventual. The commentary will critically examine the fundamentals provided by the highest court. Particular emphasis will be placed on the sporadic nature of overtime versus the periodic nature and other characteristics of the ordinary working day. The principle of the primacy of reality will make possible to conclude that if the stipends paid for formal overtime meet the characteristics of the salary, they can be considered part of it, because there is a ordinarization of them.