Aplicación del principio de estabilidad laboral reforzada en pre-pensionados que ostentan cargos de libre nombramiento y remoción

Abstract

This research examines the position of free appointment and removal established in consecrated in article 125 of the Political Constitution, and developed in Law 909 of 2004, and by the jurisprudence of the Constitutional Court and the Council of State, which stands out for its discretionary nature in the face of the permanence or not of the public employee, at the will of the nominee or administrator on duty, in compliance with the proper development of the public service or for reasons of good service.

Under the above, the enhanced guarantee of employment stability is examined, when the person holding the position of free appointment and removal, qualifies as a pre-pensioner. Since that quality is in principle respected as long as the conditions of material equality make such people are classified a special constitutional protection group, wherefore the right to an old-age pension, or retirement pension, is a social and progressive right, and likewise, once acquired it becomes an indispensable personal right of both private and public sector workers.

Finally, the legal problem raised develops, with regard to why the application of the special protection of enhanced labour stability is proposed to persons who meet the requirements of pre-pensioners, but who are subject to the discretion of the public office of free appointment and removal, under the most favourable interpretation of the constitutional principles of human dignity and material equality and rights to the minimum vital and social security , framed in the judgment of the Constitutional Court, Judgment SU-003 of 2018.