DISMISSAL – LABOUR LAW

Disciplinary dismissal

Concerning the disciplinary dismissal, it is the one that happens as a consequence of the employee’s infractions. The infractions do not depend on the employer’s free will but they appear in the Employee’s Statutes and/or in the Collective Bargaining Agreement applicable to the employee.

Frequently, the companies in Spain use the excuse of the disciplinary dismissal to avoid paying the corresponding compensation. In the case that you have had a disciplinary dismissal you should immediately come to a Spanish lawyer so that they study your case because it could, in reality, be an inappropriate dismissal, like it usually happens.

Objective dismissal

Objective dismissal, have become quite common since the last economic crisis. As an effect of the financial downturn, a lot of objective and collective dismissals occurred, as well as a change in the Worker’s Statute in Spain.

An objective dismissal happens because of technical, organizational, productive or economic reasons. During the crisis, a lot of objective dismissals happened due to the negative outcomes’ accumulation (economic reason), of the decrease of products demands (productive reason), or with the changes of the working systems that needed less employees (organizational reason).

Coronavirus crisis

Until the coronavirus crisis, this had decreased. Indeed, in 2018 and 2019 the last reasons or causes were less used though there were more technical reasons for this dismissal (for instance, linked to the robotization of a lot of factories). Those dismissals have a smaller compensation compared to the unfair dismissal because of that if your employer start an objective dismissal you should contact one of our lawyers in order to examine your concrete case to know if your compensation was well calculated.

Collective dismissal

Finally, the collective dismissal (or Labour Force Adjustment Plan) happens when the company decides to terminate various employment contracts for objective causes. Like the previous one, its compensation is smaller than the inappropriate dismissal and, for that, it is better that your lawyer examines it.

Appropriate dismissal, inappropriate dismissal and void dismissal

This is a judicial qualification that causes the following consequences:

• Fair dismissal. This is appropriate if the employer shows that there were objective causes, just like for a disciplinary dismissal. Nonetheless, not every disciplinary dismissal supposes the non-obligation to pay a compensation.

• Unfair dismissal. If, in the fair one, the employer was able to show that there were objective causes in order to have a dismissal, here it is the opposite. The company cannot justify a valid legal reason. When this happens, there are 2 possible solutions: 1) the employee has to be put back in the same position that he occupied before in the company and with the same conditions, or 2) could receive a compensation.

• Void dismissal. There are specific reasons that make the dismissal void. Those causes are mainly connected to cases of discrimination or can also protect the union rights. For instance, in our office have come some pregnant clients that had been dismissed with dismissals that, eventually, turned out to be void. If a dismissal is void, it supposes the immediate reinstatement of the employee and the payment of salaries corresponding to the months that they were not being paid because of the dismissal.

PRACTICAL EXAMPLES:

They have dismissed me. What can I do?

The dismissal must be communicated by writing in a dismissal letter. Together with the letter must be sent the acquittance.

A Spanish dismissal letter must contain the minimum information: its date, dismissal’s reasons, compensation, acquittance,…

In some cases, an implied dismissal could happen, for instance if the company forbids the employee to have access to their position. If this happens, it is better to denounce it as soon as possible to the Working Inspection and ask for a lawyer because each situation is different and must be treated in accordance with each case’s particularities.

However, usually we advise that, until you receive the dismissal letter, you (employee) should continue to go to work so that the company cannot claim unjustified absence. You should also contact a Spanish lawyer so that they report the situation to the Social Security and Working Inspection.

They have dismissed me during a temporary disability, is it legal?

Yes, you can be dismissed in that period. Nevertheless, the most probable thing is that the dismissal can be considered as an unfair dismissal so that you can have a right to claim a compensation for this dismissal. If the dismissal is declared as unfair, you, as employee, will receive a compensation of 33 days for each working year, or more if the contract started before February 12^th, 2012.

When the dismissal happens during your temporary disability, no matter the circumstances, the employee will have to submit those papers of temporary disability directly to the Social Security, or in the corresponding Mutua (Employee’s Public Insurance Company) in order to receive directly from them the payment of the benefit.

One employee has been dismissed because of missed attendance. The missed attendance are linked to the illness of the employee presented by various temporary disabilities, but the employee has always given the doctor’s reports, and wants to ask for damages.

The Real Decreto Ley 4/2020 (BOE 19-02-2020), has abolished the article 52.d) of the Workers’ Statute, for which now, it is not an objective cause to dismiss someone on missed attendance, so the employee might ask for damages.

The deadline to ask for compensation is 20 working days (without counting Saturdays, Sundays nor festive days), and will have to ask for them previously to the Comunidad Autónoma’s mediation entity.

I have suffered a work harassment in my position

There are two roads to go down in this case: the criminal one and the labour one.

Work harassment might be considered a crime if it is serious enough.

Moreover, it also has a labour relevance, since in the equality plans of the company include a harassment protocol that could be activated in case of harassment evidence. The labour jurisdiction can also be asked that may be taken the necessary means.

If you need it, our Spanish Law Firm has offices in Barcelona, Madrid and Sant Cugat del Vallès.

Disclaimer: This information in this article is not definitive, for up to date legal advice which is relevant to your case please contact our lawyers.