When a worker is dismissed, whether or not he or she has a written employment contract, he or she may proceed and claim against that dismissal within the period provided by law, which is 20 business days following the day in which it occurred. However, on many occasions the employer dismisses the worker without respecting the requirements and formalities provided for by law, particularly the provisions of art. 53 of the Workers' Statute, which establishes the obligation to deliver the dismissal letter specifying the causes that motivate the business decision, that the dismissal be communicated with a notice of 15 calendar days, the provision of compensation to the worker... Being that the omission of any of the legal requirements could lead to the dismissal being inadmissible.
What are the reasons why I can be fired?
Through a disciplinary dismissal, the employer may dismiss the worker for a series of reasons:
- Lack of attendance-punctuality; indiscipline-disobedience at work; physical or verbal offenses against employer or colleagues.
- Trust abuse; decreased work performance; Habitual drunkenness or drug addiction that has a negative impact on work.
- Harassment based on racial or ethnic origin, religion or beliefs, disability, age or sexual orientation and sexual or gender-based harassment of the employer or people who work in the company.
Through dismissal for objective reasons, the worker is dismissed without him having committed any type of infraction or serious non-compliance at work such as those previously explained, but rather it is justified for reasons that are unrelated to his behavior or work, such as negative economic situation of the company, the existence of current or anticipated losses in the future, or the persistent decrease in its level of ordinary income, which will be necessary to sufficiently prove, since the simple manifestation of going through a bad economic situation is not worth it.
We will be facing a collective dismissal, when it affects a certain percentage of the workforce. This percentage, determined by current regulations, varies depending on the number of workers in the company, and can only be based on economic, productive, technological or organizational causes.
If I am fired and I do not agree with the qualification of the dismissal, what can I do?
Once the worker has been dismissed, he or she will have a period of time to take action against him or her if he or she understands that it is not justified in the circumstances that have been exposed. For this, our law firm in Murcia capital will carry out an analysis of all the circumstances in which the dismissal has occurred, taking into account technical and legal aspects that may entail decisive elements to determine whether the rights recognized to the worker have been respected, or if the termination of the employment relationship is has been carried out without observance of the legal framework, in response to which we will initiate the planned judicial procedures, from the prior conciliation before the Mediation, Arbitration and Conciliation Service and, where appropriate, the judicial procedure before the social jurisdiction.
What can be achieved by going to court?
Once the judicial procedure against the worker's dismissal has been processed, the judge will classify the dismissal as:
Appropriate, provided that it is considered that the established regulations have been complied with and the causes that motivated the dismissal are duly justified.
Inadmissible, when the judge considers that the causes for dismissal are not proven or the formal requirements decreed are not met.
In certain circumstances in which the dismissal is motivated by discrimination or the worker's fundamental rights are being violated.
These qualifications will lead in each case to different circumstances, both from the compensation that the employer is obliged to pay, and the payment of processing salaries in the event that the employer reinstates the worker, or, where appropriate, the obligation of the company to discharge the worker from the date of dismissal... Different effects that will occur depending on the dismissal against which action is taken.
SANCTIONS
In the development of work activity, it may happen that the worker does not behave diligently, and the company is forced to act accordingly. But to do so, you must comply with the regulations that regulate the effects for each type of non-compliance, according to the grading of the offenses and sanctions.
Sometimes the identification and classification of the type of infraction by the worker is not easy for the employer, which leads to sanctions being imposed that exceed the seriousness of the non-compliance. On other occasions, the imposition of faults and sanctions is carried out without the formalities required by law for it to be valid (lack of form, prescription of the fault, disproportionality of the classification of the infraction with the sanction...)
Our office offers you the response most in line with the conventional regulations that regulate each sector, where the different offenses and sanctions are specified, so that said sanction is imposed fairly and for the purpose for which they are intended, avoiding With this, the worker may be forced to initiate legal proceedings for finding said absence unjustified. Companies may sanction labor breaches by workers in accordance with the scale of offenses and sanctions established for each case in the collective agreement applicable to the sector, but it must be taken into account that sometimes said sanction can lead to up to a dismissal.
For this reason and given the complexity of labor relations, there are many cases in which we find workers who have been unfairly sanctioned and who have obtained legal defense from our work aimed at protecting their labor rights.
Our job is to advise you both from the perspective of the employer, doing the study on what sanction to impose for the fault committed by the worker, the period we have for it, the way in which we must communicate said sanction and its motivation; as from the perspective of the worker himself, in the face of sanctions that, unjustified or lacking the necessary legal basis, make said sanction contrary to the law.
