Dismissal Lawyers EXPERTS IN LABOR LAW What is a dismissal? Dismissal itself is never the decision taken by an employee who has decided to take another path or who decides to take an unpaid leave of absence. Dismissal is one of the most unpleasant situations that a person can face in his or her adult life, both from the point of view of the economic
What is a dismissal?
Dismissal itself is never the decision taken by an employee who has decided to take another path or who decides to take an unpaid leave of absence.
Dismissal is one of the most unpleasant situations that a person can face in his or her adult life, both from the point of view of the economic consequences it entails and on a personal level, due to the feelings of frustration, humiliation or embarrassment that such termination of employment entails.
A dismissal is a unilateral decision of the employer, of the company, to terminate the contract with the worker prematurely, and according to the Workers’ Statute there are two types of dismissal or termination of contract, always depending on the reasons that have led to such situation.
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Types of layoffs
Objective dismissal occurs when the employee’s contract is terminated for reasons beyond the employee’s control, i.e. when the cause of the dismissal cannot be attributed to the employee.
It is also considered objective dismissal when the termination occurs when it is considered that the employee is unfit for the assigned tasks, for example due to disability, lack of adaptation due to technical modifications, repeated justified absences or due to causes attributable to the company, such as economic, technical or productive causes.
Disciplinary dismissal occurs when there has been negative behavior on the part of the employee, which may be repeated unjustified absences, disobedience, offenses to the employer, intentional decrease in productivity or inadequate behavior in general.
In this case the employee is not entitled to any type of indemnity, although he/she will be entitled to a severance payment.
Unjustified dismissal occurs when an employer unilaterally decides to terminate the employment relationship with an employee for reasons not attributable to the employee, i.e., without the employee having caused the dismissal in any way and there is no justified cause.
This type of dismissal results in the payment to the employee of a severance indemnity of 45 days’ salary per year of service (until 11/02/2012) and 33 days’ salary per year of service (from 12/02/2012 onwards).
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Communication of the different types of layoffs
In all cases the dismissal must be communicated to the employee in writing, who will check if the date is correct and will sign as “not in accordance”. If the employee so wishes, he/she may contest the dismissal, provided that he/she does so after a maximum of 20 working days after the communication of the dismissal, and by doing so, the intention is that the dismissal be considered unfair.
Only a judge can determine whether a dismissal is unfair, and in the event that it is, the company can either compensate you with 33 days’ salary per year worked up to a maximum of 24 monthly payments, or reinstate you in the same position and pay you the salaries that you have not received during the whole process, which generally lasts around one year.
The causes for the declaration of unjustified dismissal are basically two: the facts for which the employee has been dismissed are not true or have been exaggerated, or the dismissal has not been properly communicated to the employee and therefore the employee has been left defenseless.
Curiously, there is the possibility that the company admits the unfairness of the dismissal at the time of communicating it to the worker. In this case, it is in the company’s interest to dismiss this person and it is willing to give him/her the above-mentioned compensation for unfair dismissal.
Be that as it may, when a worker has been dismissed and it is not clear whether it has been a fair or unfair dismissal, the best thing to do is to contact a lawyer, who will know better the legislation and the strategy to follow.
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We will assess the viability of the case to give you an answer at the same time, inform you of all the costs of the process and clarify all the doubts you may have.
Once the matter is accepted, we will advise you on the medical reports to request and how to do it. We will also follow up on the disability file from the beginning, presenting the corresponding documentation.
In the event that the administrative resolution issued by the National Institute of Social Security or subsequently by the Social Security Court is unfavorable, we would file the pertinent claim to the next competent body to claim it.
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