The Labor Court of Curicó, in Case RIT No. O-255-2025, granted the indirect dismissal claim filed by two workers who received real remuneration far higher than that declared to the social-security bodies. The court determined that the per diems and informal transfers that completed the real income were not reimbursable expenses: they were disguised taxable remuneration. That single finding was enough to justify the termination of the contract, declare the nullity of the dismissal, and jointly and severally condemn the group's companies to pay contributions, severance, accrued wages, and non-prescribed vacation.
If your company operates with a structure where part of your workers' real income is channeled outside the payslips, this ruling describes exactly the risk that generates.
What happened
Two workers of a group of companies —considered a single economic unit by the court— terminated their contracts on June 16, 2025, invoking article 171 of the Labor Code in relation to the grounds of article 160 No. 1(a) (lack of probity) and No. 7 (serious breach of contractual obligations). The basis: their employers formally declared remuneration close to the minimum wage to the social-security bodies and paid the differential —which was substantial— through a per-diem item mischaracterized in the payslips and direct transfers that were not declared as remuneration.
The employer answered on several fronts. It raised a prescription defense regarding rights accrued more than two years before the dismissal, based on article 510 of the Labor Code. It argued that the additional payments corresponded to per diems, operational expenses, and petty-cash funds, with no remuneration character. And it argued that both workers performed positions of exclusive trust, excluding them from the limitation of working hours under article 22, second paragraph, of the Labor Code.
The court analyzed the real nature of the additional payments. The conclusion was direct: the per diems paid were not subject to variable reporting nor did they correspond to expenses actually incurred; they were fixed, periodic, and previously determined sums. Under those conditions, they could not be characterized as a reimbursable expense. They constituted remuneration in the terms of article 41 of the Labor Code and, therefore, were taxable.
The court granted the prescription defense only partially, limiting the claim for vacation corresponding to periods before the two years prior to the indirect dismissal. The rest of the awards prospered. The decision rule was established precisely: under-contributing by hiding real remuneration in the form of per diems constitutes lack of probity (article 160 No. 1(a)) and enables indirect dismissal with the right to severance for years of service increased by up to 80%. The court clarified that the ground of serious breach of contractual obligations (No. 7) was not proven —the workers were excluded from working-hours rules— so the basis granted was exclusively the lack of probity.
What it may mean for your company
The starting point is technical but has immediate operational consequences. Article 41 of the Labor Code defines remuneration as any consideration in money or appraisable in money that the worker receives by reason of the contract. What distinguishes remuneration from a legitimate per diem is not the name the company gives it: it is the real structure of the payment.
A per diem is legitimate when it covers variable, actual expenses subject to reporting. It is disguised remuneration when it is paid as a fixed sum, regardless of whether the worker incurred any expense. The court applied exactly that criterion.
The practical consequence is twofold. On the one hand, the worker who detects that their real remuneration is not being contributed on can invoke the grounds of article 160 No. 1(a) and No. 7 to invoke article 171, terminate the contract unilaterally, and demand to be paid as if they had been dismissed without cause. That includes compensation in lieu of prior notice, severance for years of service with the corresponding legal increase —which in this ruling was 80%— and the wages accrued from the indirect dismissal until the nullity is cured. On the other hand, the company that contributes on a base lower than the real remuneration accumulates a social-security debt that the court can order paid in full for the entire employment relationship, without the two-year prescription limiting it (in this ruling the prescription only limited the vacation claim).
There is a nuance worth naming. The two-year prescription of article 510 operates: the court applied it and limited part of the vacation claimed. That does not eliminate the exposure, but it does limit it. The greater risk is not the historical social-security debt —which can be significant but is at least calculable—; it is the enabling of indirect dismissal, which immediately activates the nullity of the dismissal under Law No. 19,631 and the duty to pay wages until the employer proves it has paid or settled the contributions owed.
The ruling also rejected the infractions relating to working hours and rest because the contracts expressly established the exclusion from working-hours rules for trust functions and the evidence did not prove otherwise. The exclusion from working-hours rules, when well founded and documented, holds. But that does not protect under-contribution: they are two distinct planes, and the second is where the court ruled against the employer.
If your company has workers excluded from working-hours rules who also receive payments outside their payslips —under any name— the question is not whether the workers will complain someday. The question is how much the gap between real remuneration and the declared taxable amount is accumulating.
Do you know how much the gap between what you pay and what you contribute on adds up to today? Schedule a session to quantify that exposure and assess an orderly regularization.
What you can do
If you have workers with mixed remuneration —part in payslips, part in per diems, operational funds, or other off-payroll items— the risk this ruling describes is concrete and active today.
- Audit the real structure of remuneration. Identify all payments made outside the payslip: fixed per diems, informal bonuses, transfers, permanent petty-cash funds. For each, assess whether it meets the requirements of a legitimate reimbursable expense —variability, reporting, link to actual expenses— or whether in practice it functions as a fixed income supplement.
- Regularize the taxable bases. If the audit detects disguised remuneration, calculate the accumulated social-security gap within the non-prescribed period and assess a voluntary regularization before the relevant social-security bodies. Voluntary regularization is less costly —and has better negotiating conditions— than a judicial conviction with an 80% increase.
- Review the contracts and per-diem policies. Reformulate any per-diem policy that does not require actual expense reporting, that sets fixed amounts independent of the expense incurred, or that covers items with no correlate in an actual disbursement. The distinction between a legitimate per diem and taxable remuneration is not defined by the name the company gives it: it is defined by the structure of the payment.
If any of these points raises questions —the fixed per diems, the accumulated social-security debt, or the regularization route— a 30-minute diagnostic session is enough to size up your gaps. Schedule here.
If you need to assess whether your company's remuneration structure generates exposure to indirect dismissals for under-contribution, or you want to review your per-diem policies in light of this ruling, schedule a meeting with our team.
This content is informational and does not constitute legal advice.