The Substantive Labor Code establishes in its Article 230 that every employer who has under their service a worker earning less than or up to two current legal monthly minimum wages, has the obligation to provide every four months, free of charge, a pair of shoes and a work outfit to the worker, in accordance with the work previously performed and contracted. The worker is entitled to this benefit if, on the date of delivery of footwear and clothing, that is, April 30, August 31, and December 20, they have completed more than three months of service with the employer and are active. This latter point is because the aforementioned items are provided to carry out the assigned work (if the worker does not fulfill this purpose, it exempts the employer from providing them in the following period, but the employer must inform the Labor Inspector about it), therefore, it is considered essential to provide them when the worker is not performing their work activity, regardless of the cause.
In the aforementioned, it was established that it was mandatory for the employer to provide the work clothing and footwear allowances because when reference is made to workers earning more than 2 SMLMV, it becomes voluntary on the part of the employer and in favor of the worker.
Once the concept of the provision is established and understood, it becomes necessary to ask: Can the provisions of work clothing and footwear be compensated in money? The Substantive Labor Code addresses this in Article 234 as follows:
ARTICLE 234. PROHIBITION OF COMPENSATION IN MONEY. Employers are prohibited from paying in money the benefits established in this chapter.
Thus, it is established in the first instance the impossibility of compensating the provision benefit in money while the employment relationship is in force or upon its termination, since its purpose or aim is for the worker to use them for the personal provision of the service.
The Supreme Court of Justice, Labor Cassation Chamber, in response to the cassation appeal filed by the plaintiff against the judgment of August 31, 2009, issued by the Labor Chamber of the Superior Court of the Judicial District of Bogotá, establishes that once the employment relationship ends, the compensation of the footwear and clothing provisions is inappropriate, since, as initially mentioned, the supply is justified for the benefit of the active worker, but not for those who are unemployed because they simply cannot use them in the contracted work since it no longer exists as such. Compensation in money is not provided for because it is a social benefit in kind; the legislator prohibited it expressly and unequivocally, as can be seen in the cited article. However, there is the possibility of filing a claim for damages, in order to compensate for what the worker had to spend at the time to supply their own provision during the course of the employment relationship due to the employer's breach, since the provision benefit is a right that the worker has and cannot waive. Such a claim requires that the claimant demonstrate the damages.
Based on the foregoing, the compensation for damages does not automatically become final merely because of the breach and termination of the employment relationship, but rather judicial proceedings must be initiated so that the affected party can prove it and, in turn, the amount of compensation is established, since it is not legally tariffed; therefore, the judge must set it in each specific case, and this may include the monetary amount of the provision, as well as any other type of damages that may be alleged and proven.
BIBLIOGRAPHIC REFERENCES
Colombia, Supreme Court of Justice, Labor Cassation Chamber (2014). SL5754-2014. Rad No. 44057. Acta No. 15. M.P. José Mauricio Burgos Ruíz. Bogotá.
Colombia (1950) Substantive Labor Code. Legis. Bogotá.
Colombia, Supreme Court of Justice, Labor Cassation Chamber (1988) Judgment 10400. Rad. 10.400. M.P. Escobar Henríquez, Francisco. Bogotá.
Colombia. Constitutional Court (1996) Judgment C-710/96. Reference: File D-1292. M.P. Dr. Jorge Arango Mejía. Bogotá.
Ramos, N (2009) Concept 164363. Filed 140349. Provision of footwear and clothing. Ministry of Social Protection (now Ministry of Labor). Bogotá.