Culpa patronal. ¿Es fuente de inequidad la interpretación judicial vigente frente a la concurrencia de culpa del empleador con la del trabajador?

Abstract

Using equity as an essential interpretative element of the Colombian Labor Code and in general terms for the justice administration system, this paper is intended to analyze the legal issues that arise from the current interpretation given by the Labor Chamber of the Supreme Court of Justice regarding employer liability in labor related accidents or diseases, specifically under a scenario in which employer and employee concur to cause the damage. Such position deems, regardless that in the occurrence of a labor accident or disease both employer and employee concur in its cause, the employer will be liable for the total amount of the damages without the possibility to reduce a portion of the damage compensation equivalent to the degree of incidence of the other party in the harmful event. The conclusion is that the existing precedent contradicts basic legal principles such as not invoking one’s own turpitude or not to obtain an economic benefit for another without a fair cause; contradiction that results in inequity against the employer.