Unfair dismissal, what is it and how to act?

February 22, 2020 Admin-MBDPLawFirm 0 Comments

It is Monday morning. He gets out of bed, takes a shower, climbs into the car, and arrives at his workplace. As soon as you enter, you receive a call that summons you to your boss’s office. And, upon entering, the latter informs him that he has to leave the company.

Unfortunately, this is a more frequent work situation than it seems. In legal terms, it is what is known as unfair dismissal . Here we are going to talk about it in depth so that you know what to do in case you have to face that situation.

What is an unfair dismissal?

Unfair dismissal is one in which a company decides to terminate the contractual union that unites it with a worker without just cause or reason, that is, before the duration of the contract expires. In fact, this type of dismissal occurs more commonly in permanent contracts.

When carrying it out, the company is obliged to communicate it to the worker. This will be done through a document called dismissal communication, which will reflect the reason that causes it. In case you as an employee do not agree with the reasons alleged by the company, you must attach a ‘non-compliant’ right next to your signature.

Many workers, when fired, refuse to sign the communication thinking that this will compromise them in some way. However, as long as the expression ‘non-compliant’ is indicated, it can be signed without there being anything to fear in the face of future claims. We will explain these a little later.

What reasons cause a dismissal to be considered inadmissible?

Obviously, the company will use any legal channel that allows it to demonstrate that the dismissal has been for objective reasons and thus reduce or eliminate the compensation to be paid to the worker. However, current legislation indicates that any dismissal will be considered inadmissible if any of these circumstances occur:

  • The dismissal procedure included in articles 51 and 55 of the Workers’ Statute is not complied with: this consists, chronologically, in the delivery of the dismissal letter in writing and in hand to the worker, in the due information of the reasons that motivate such dismissal and on the date from which it will be effective.
  • The reasons alleged by the company are not real or sufficient to justify the dismissal: the employer must have reliable evidence that the worker has not fulfilled his obligations. For example, we are talking about filing work attendance records if the employee has repeatedly absent himself from his position.
  • Discriminatory reasons: any dismissal that occurs for reasons of race, age or sex, as well as those that violate fundamental rights, public liberties or special conditions by representation of workers, will be declared inadmissible.
  • Maternity and reconciliation of family and work life: the same as in the previous case.

What to do in the face of such a layoff?

The first of all is to coldly analyze the causes specified by the company to carry out the dismissal. Under that, the employee can do two things:

  • Accept the dismissal: even if you consider that the causes are not justifiable. In this case, you must sign the documentation provided by the company by signing it and without attaching the ‘non-compliant’ that we discussed earlier. Then, you must sign the strike and file your unemployment claim within 15 days.
  • Do not accept the dismissal: you must forget to sign the strike and write clearly in the written communication given by the company, ‘not compliant’.

From there, the time will come to take legal measures following this order and meeting the following deadlines:

  • Presentation of the formal claim for the dismissal before the Mediation, Arbitration and Conciliation Service: it must be done within 20 days from the date on which the dismissal becomes effective. Company and worker will try in this phase to reach an agreement without resorting to the judicial route.
  • Presentation of the lawsuit: it must be done in the competent court within 20 days from the moment an agreement is not reached in the Mediation, Arbitration and Conciliation Service.

Finally, it will be the judge who decides, according to the evidence and testimonies presented by both parties, who determines whether the dismissal is considered inadmissible or not. We also want to remember that the worker has 12 months to claim the amounts owed by the company, regardless of the dismissal and the corresponding compensation.

The dismissal has been considered inadmissible: what consequences does it have?

The judge will consider the dismissal null, not inadmissible. Based on this, it will give the employee the right to be reinstated in his position or in another of similar characteristics and with a remuneration identical to that which he had before. In addition, the worker must retain their seniority. You may also pay the dismissal in exchange for the payment of the relevant compensation for unfair dismissal. In any case, you must answer within 5 business days from the publication of the court ruling and face the processing wages, that is, those that the worker had received from the time of the communication of the dismissal until the publication of said sentence.

Compensation: calculation of unfair dismissal

We are going to suppose that the employer decides not to reinstate the worker and pay him the corresponding compensation. How is the calculation of unfair dismissal carried out?

Since the publication of the 2012 labor reform, workers have been entitled to unfair dismissal compensation of 33 days per year worked with a maximum total of 24 monthly payments.

The calculation of unfair dismissal and corresponding days is very simple. First of all, you have to know how much is a day’s salary. To do this, just look at any payroll and divide the total amount by the number of days you have. Then, that amount is multiplied by 33 for each year that you have worked entirely in the company. Finally, the equivalent part is calculated according to the number of months worked in the current year.

Dismissal coming and unemployment

You already know how to calculate in an unfair dismissal the days of salary that you can receive in compensation. To this it should be added, in addition, that you will have the right to receive the unemployment during the subsequent months according to the amount of time that you would have contributed. But what happens to unemployment benefit if the judge does not agree with you? It will depend on the case:

  • The dismissal is considered objective: that is, the company has alleged economic, productive or any other causes contemplated by law and, based on this, it has made a dismissal for objective reasons, in which case the worker is entitled to their benefit for unemployment and to collect a 20-day compensation per year worked.
  • The dismissal is appropriate: by this we mean that the judge agrees with the company when he indicates that the dismissal has been carried out for disciplinary reasons. In this case, the worker has no right to compensation or unemployment.

Therefore, in an appropriate dismissal, unemployment is not a right, but in an inappropriate one and in one for objective reasons, yes. We hope we have helped you clarify all your doubts about it.

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