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Can I be objectively fired for absenteeism?

Absenteeism from work is any absence or abandonment of the work post and the duties attached to it, in breach of the conditions set out in the employment contract. It can also be defined as any absence of a person from his or her work post, at times corresponding to a working day, within the working day.

As our labour specialist argues, absenteeism is one of the issues that most concerns companies because of the organizational problems it raises and the costs it generates.


Can the employment contract be terminated due to absenteeism?

Section d) of article 52, ET, allows the termination of the contract for objective reasons, in the event of absences from work, even justified but intermittent, reaching twenty percent of the working days in two consecutive months, provided that the total number of absences in the previous twelve months reaches five percent of the working days, or twenty-five percent in four discontinuous months within a twelve-month period.

However, our employment specialist understands that absences due to

a) legal strike for the duration of the strike.
b) the exercise of activities of legal representation of workers
(c) accident at work.
(d) maternity and paternity
(e) risk during pregnancy and lactation.
(f) diseases caused by pregnancy, childbirth or breastfeeding
(g) leave and holidays
(h) non-occupational illness or accident where the leave has been agreed by the official health services and lasts for more than 20 consecutive days.
(i) those caused by the physical or psychological situation resulting from gender-based violence, as accredited by the social care or health services, as appropriate.
j) medical treatment of cancer or serious illness.
 
What happens in cases of absence due to illness?

The problem that arises is to determine whether other absences due to illness that have not been verified by the official medical services and that could have been subject to disciplinary sanctions during the same periods of time, or that have prescribed the possibility of sanctions, can be counted towards this extinctive cause.

Unjustified absences from work are grounds for disciplinary action, and therefore in their final effect of dismissal. The number of absences that can be counted for the application of these measures will vary according to the collective agreement that regulates the employment relationship. It should be borne in mind, however, that not every unreported absence can be subject to a penalty, since the impossibility of giving notice cannot be opposed to the employee, if the reason for the absence is justified.


What minimum percentage of absences may lead to objective dismissal?

The minimum percentage of absences that make up the extinction scenario is 20% of the working days in two consecutive months, provided that the total number of absences in the previous twelve months reaches 5% of the working days, or 25% in four discontinuous months within a twelve-month period.

As the law refers to working days, public holidays and holidays are to be excluded. It does not seem appropriate to exclude Saturdays because they are only worked half a day even though they are often listed in the working calendars as non-working days, since they are a working day, which is a different concept from the one that has to be taken into account for the calculation of the annual or lower cycle working day.


Can absenteeism lead to disciplinary dismissal?

Article 54 of the Workers' Statute regulates disciplinary dismissal "based on a serious and culpable breach by the worker", which would include disciplinary dismissal for repeated and unjustified absences or tardiness at work.
 

PRACTICAL EXAMPLE OF OBJECTIVE DISMISSAL DUE TO ABSENTEEISM

Juan works all week 40 hours. It turns out that for personal reasons he is missing 8 days in a period of 2 consecutive months. The company fires him properly because there is objective cause for the termination of the employment contract. However, in order for the dismissal to be objective and in accordance with the Workers' Statute, the total number of absences in the previous 12 months must have reached 5% of the working days, otherwise the worker cannot be objectively dismissed.