The dismissal of workers can be appropriate or inappropriate
Labor Law
Dismissal is one of the worst situations that a person can encounter throughout their life, both due to the economic consequences and the psychological consequences that this conflict produces in the person.
Dismissal is a unilateral decision made by the employer or head of the company to terminate the contract with the worker prematurely. As established by labor legislation and the Workers' Statute, there are different types of dismissal, both APPROPRIATE and INAPPROPRIATE, and each must comply with formal requirements, as well as certain legal deadlines.
What are the main types of dismissals?
First of all, it must be determined that a PROCEDURAL dismissal may be motivated by several different causes, within the limits of labor legislation. In general terms, they can be classified into:
Disciplinary dismissal
It is one that involves inappropriate conduct by the employee in his or her workplace, which harms the company in a clear and direct way. This type of dismissal can occur in cases of lack of voluntary attendance at work, disobedience to the orders of superiors, abuse of trust, continued lack of performance, drunkenness or drug addiction that affects work, among many other cases. .
In general terms, it is a type of dismissal in which the achievement of bad acts or misconduct on the part of the worker is associated with his or her dismissal. This dismissal does not entail any type of direct compensation, since this entire series of acts causes damages to the employer, and therefore, he is not compensated as is logical. However, the worker who has been dismissed in this way will be entitled to unemployment benefits as long as he or she meets the working conditions required by the SEPE.
Objective dismissal
These are dismissals completely regulated by law and that occur in specific circumstances, such as economic, technical or production causes. They are layoffs in which the company must make the difficult decision to fire, since there are circumstances of great weight when it comes to firing, whether they are economic reasons due to the company being in a complex financial situation, organizational, technical or production circumstances. among which we can find that there is no demand for a certain product to produce it or that there are technical reasons that mean that certain labor is not necessary, etc.
In this type of dismissal there is compensation, since a worker is dismissed for reasons that have nothing to do with the worker's attitude, and therefore, the company must compensate the workers at a rate of 20 days per year worked. dismissed workers with a maximum of 12 monthly payments, in addition to providing the necessary documentation so that the affected person or persons can apply for unemployment benefits.
Collective dismissals
In this case, it is not a single employee who ends his employment relationship with the company, but a large number of them, in legally regulated percentages. They are called Termination Employment Regulation Files (ERE) and they may be motivated by economic and technical causes of the company.
When is a dismissal considered UNFAIR?
A disciplinary dismissal or objective dismissal, as defined in the previous section, may be declared inadmissible or void. This is so because it is not proven that the employee has committed any of the serious offenses that justify it or because the objective conditions for dismissal are not met. Therefore, if the dismissal is not correctly justified by the company, it must be considered unfair.
Once the dismissal has been declared unfair, in this case, the consequences may be different:
Worker reinstatement
The employer, after having recognized the inadmissibility, may opt for the reinstatement of the worker by paying the respective processing salaries, these are the days that the worker would have had to receive if he had been working. Therefore, in addition to recovering his job, he will also recover the time he has been fired without working.
Worker's compensation as stipulated by law
In this case, there is also compensation for employees who have been unfairly dismissed. Our legal system regulates that unfair dismissal must be compensated at a rate of 33 days per year worked, with a maximum of 24 monthly payments. However, if the worker has a contract prior to February 12, 2012, the corresponding compensation is 45 days per year worked, with a limit of 42 monthly payments. It should be noted that this compensation will only be applied to work time prior to 2012. Therefore, all other years after 2012 will be compensated based on the criterion of 33 days per year worked.
In this case, if the worker has been dismissed by the employer, he must comply with all the formal requirements: that is, the employer must give him the corresponding letter of dismissal and written termination.
If the worker does not agree with the dismissal, he will have the right to challenge it judicially within 20 business days. That is why it is recommended that the WORKER immediately go to a LAW FIRM as soon as the DISMISSAL occurs to be able to act as soon as possible, otherwise the consequences may be irreparable, since the period to take legal action is short.
Contact us, and our lawyers specializing in dismissals will study your specific case.
At Forcam Abogados we have offices in Barcelona, Madrid and Reus.
Dismissal is a unilateral decision made by the employer or head of the company to terminate the contract with the worker prematurely. As established by labor legislation and the Workers' Statute, there are different types of dismissal, both APPROPRIATE and INAPPROPRIATE, and each must comply with formal requirements, as well as certain legal deadlines.
What are the main types of dismissals?
First of all, it must be determined that a PROCEDURAL dismissal may be motivated by several different causes, within the limits of labor legislation. In general terms, they can be classified into:
Disciplinary dismissal
It is one that involves inappropriate conduct by the employee in his or her workplace, which harms the company in a clear and direct way. This type of dismissal can occur in cases of lack of voluntary attendance at work, disobedience to the orders of superiors, abuse of trust, continued lack of performance, drunkenness or drug addiction that affects work, among many other cases. .
In general terms, it is a type of dismissal in which the achievement of bad acts or misconduct on the part of the worker is associated with his or her dismissal. This dismissal does not entail any type of direct compensation, since this entire series of acts causes damages to the employer, and therefore, he is not compensated as is logical. However, the worker who has been dismissed in this way will be entitled to unemployment benefits as long as he or she meets the working conditions required by the SEPE.
Objective dismissal
These are dismissals completely regulated by law and that occur in specific circumstances, such as economic, technical or production causes. They are layoffs in which the company must make the difficult decision to fire, since there are circumstances of great weight when it comes to firing, whether they are economic reasons due to the company being in a complex financial situation, organizational, technical or production circumstances. among which we can find that there is no demand for a certain product to produce it or that there are technical reasons that mean that certain labor is not necessary, etc.
In this type of dismissal there is compensation, since a worker is dismissed for reasons that have nothing to do with the worker's attitude, and therefore, the company must compensate the workers at a rate of 20 days per year worked. dismissed workers with a maximum of 12 monthly payments, in addition to providing the necessary documentation so that the affected person or persons can apply for unemployment benefits.
Collective dismissals
In this case, it is not a single employee who ends his employment relationship with the company, but a large number of them, in legally regulated percentages. They are called Termination Employment Regulation Files (ERE) and they may be motivated by economic and technical causes of the company.
When is a dismissal considered UNFAIR?
A disciplinary dismissal or objective dismissal, as defined in the previous section, may be declared inadmissible or void. This is so because it is not proven that the employee has committed any of the serious offenses that justify it or because the objective conditions for dismissal are not met. Therefore, if the dismissal is not correctly justified by the company, it must be considered unfair.
Once the dismissal has been declared unfair, in this case, the consequences may be different:
Worker reinstatement
The employer, after having recognized the inadmissibility, may opt for the reinstatement of the worker by paying the respective processing salaries, these are the days that the worker would have had to receive if he had been working. Therefore, in addition to recovering his job, he will also recover the time he has been fired without working.
Worker's compensation as stipulated by law
In this case, there is also compensation for employees who have been unfairly dismissed. Our legal system regulates that unfair dismissal must be compensated at a rate of 33 days per year worked, with a maximum of 24 monthly payments. However, if the worker has a contract prior to February 12, 2012, the corresponding compensation is 45 days per year worked, with a limit of 42 monthly payments. It should be noted that this compensation will only be applied to work time prior to 2012. Therefore, all other years after 2012 will be compensated based on the criterion of 33 days per year worked.
In this case, if the worker has been dismissed by the employer, he must comply with all the formal requirements: that is, the employer must give him the corresponding letter of dismissal and written termination.
If the worker does not agree with the dismissal, he will have the right to challenge it judicially within 20 business days. That is why it is recommended that the WORKER immediately go to a LAW FIRM as soon as the DISMISSAL occurs to be able to act as soon as possible, otherwise the consequences may be irreparable, since the period to take legal action is short.
Contact us, and our lawyers specializing in dismissals will study your specific case.
At Forcam Abogados we have offices in Barcelona, Madrid and Reus.