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Unfair dismissal, what is it and how to act?

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Imagine the situation that I am going to present to you next. One day you arrive at work and without prior notice, your company decides to do without your services without you having the slightest idea that this was going to happen, how do you stay? Do not panic or worry, if this has happened, perhaps you are facing an unfair dismissal , and you still have time to act.

Index of contents:

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  • What is an unfair dismissal?
  • Reasons or causes of an unfair dismissal
  • Consequences of an unfair dismissal
  • How to act against an unfair dismissal?
  • How to calculate the compensation for an unfair dismissal?

Index of contents

What is an unfair dismissal?

When we talk about unfair dismissal, we mean when a company decides to fire one of its employees without a reason or just cause. For example, before the contract expires.

When an employee is fired and considers that there are no justifiable reasons for the company to have fired him from his job, when signing the notice of dismissal , it is necessary that a “ non-compliant appears next to the signature . In this way, you will be able to carry out future claims.

Once the communication of the dismissal with a “ non-compliant ” has been signed , the first thing that will have to be done is to present a conciliation ballot in the labor court . This process is carried out to try to reach an agreement between the employee and the company , and thus, avoid resorting to the courts.

During this agreement process, the employee will have to show that the reasons or motives for which the company claims to have fired him, do not correspond to reality. On the other hand, the company will have to explain explicitly, both in the dismissal letter and in the conciliation act, the reasons or causes for which the employee is dismissing.

But, for what reasons can we find ourselves facing an unfair dismissal?

Reasons or causes of an unfair dismissal

What makes a dismissal unfair? There are several motives and reasons that cause a dismissal to be considered inadmissible. We are going to comment on them.

1 # Failure to comply with the legal requirements for dismissal

The dismissal procedure is included in articles 51-55 of the law . We must bear in mind that each type of dismissal has specific characteristics and dismissal protocol. However, in all of them, the following must be met:

  • Present the letter of dismissal in writing and by hand.
  • Report the reasons and reasons why the dismissal is being carried out.
  • Date on which said dismissal becomes effective.

2 # The reasons and motives given by the company do not justify the dismissal

When the specific reasons and motives given by the company to the employee who is firing are not sufficiently justifiable, the employee has the right to appeal for unfair dismissal , since it is his word against that of the company.

3 # When it is considered that the dismissal is carried out for discriminatory reasons

Apart from the two reasons mentioned above, there are other types of reasons that cause a dismissal to be considered inadmissible, and these may be known as discriminatory .

  • Because of race, age or sex .
  • For violation of fundamental rights or public freedoms.
  • For violating the conditions of the workers’ representatives .  
  • For violating any right related to motherhood and reconciliation of family life with work.

What happens if a dismissal is carried out with any of the causes exposed in the previous points? If this is the case, the dismissal will be null , therefore, the employee will have the right to be reinstated. In the event that the company is not willing to return his job to the employee, it must pay him compensation.

Next we are going to delve into this topic, since it is of utmost importance for both the worker and the company.

Consequences of an unfair dismissal

As we have commented in the last paragraph of the previous point, in the event that it is alleged that an unfair dismissal is taking place, the employer has 5 days to reinstate the employee , or on the contrary, to compensate him.

It should be borne in mind that if the company has not replied within 5 days of the dismissal, it means that it does not accept either of these two conditions . But what if you accept one of these cases? Let’s see it.

1 # When the company decides to reinstate the employee

In the event that the company opts for the option of reinstating the worker, it must do so with the same working conditions as before being fired . In addition, he must be paid the so-called ” processing salaries “, that is, the corresponding days from when he was fired until he has been reinstated, or in the case of recourse to court, since the judge issued the sentence of unfair dismissal. However, in case the worker already collects compensation, he should return the processing salary.

Another factor to take into account is that if the company is willing to reinstate the employee, it must communicate it within 10 days , and also, do so under the same conditions and preserving the seniority and rights that the employee had before being fired.

But you must be careful, since there have been cases of irregular readmission, that is, the employee has not been readmitted with the same conditions as before, and therefore, he has the right to appeal through the courts. In this way, you will not be readmitted but you will be entitled to compensation.

2 # When the company decides to indemnify the employee instead of reinstating him

Compensation for unfair dismissal is equivalent to 33 days of salary per year worked , as of the Labor Reform of February 12, 2012. Before the reform, compensation for unfair dismissal was 45 days per year worked, up to a maximum of 42 monthly payments. Why is it important to consider this reform?

In the event that an employee’s contract had started before the reform and ended after it, it will have a period where 45 days per year worked and the other 33 days apply.

One of the most frequent questions that employees ask themselves is the right to unemployment , and yes, indeed, when an unfair dismissal is carried out, they also have the right to unemployment, but as long as the requirements imposed by the Services are met. State Employment Public .

How to act against an unfair dismissal?

When an employee is fired, without a doubt the first thing to do is assess the causes, motives and reasons why they have been fired from their job, and if these are justifiable, reasonable and objective. That way, you can assess whether it is an unfair dismissal or not.

In the event that the employee does not find valid or justifiable reasons for his dismissal and considers that the company has acted improperly, he must do the following.

Faced with an unfair dismissal, the employee has two options, accept it or not accept it. If you accept it , you will have 15 days to file your unemployment claim . But if you are not satisfied with the dismissal, you must sign the documentation presented by the company as “non-compliant” in order to initiate legal action.

It is important to bear in mind that they have 20 working days to contest the dismissal and 12 months to demand what the company owes the employee.

If the employee has already made a decision regarding the previous point, he must present his claim to the Mediation, Arbitration and Conciliation Service . Once this is done, the employee and the company will be summoned to try to reach an agreement. If this is not possible, the employee has 20 days to file a claim in court .

Therefore, the judge will be the one to rule on whether or not it is an unfair dismissal. If so, the employee will be entitled to compensation.

How to calculate the compensation for an unfair dismissal?

In the post it has already been mentioned that after the reform of February 12, 2012, compensation for unfair dismissal has gone from 45 days per year worked to 33 days and with a maximum of 24 monthly payments. And that in addition, employees with seniority prior to the labor reform, have to calculate this compensation in two sections.

Do you want to calculate the compensation that you would receive in case of unfair dismissal? Here are the operations you should perform.

This is a rule of three . If for 12 months worked you are entitled to 33/45 days for X months worked, you are entitled to X days. These days, they must be multiplied by the salary per day, and we will already know the compensation that we have to do.

Important, the compensation must not exceed the limit of 42/24 monthly payments . If it exceeds them, we will only have to take into account up to this limit.

Do you still have any questions about unfair dismissals? Feel free to comment and we will try to solve them.

Are you one of those who want or fight for workers’ rights? What do you believe in fair companies and that they have consideration for their employees? Well, perhaps your vocation is that of Labor Relations to guarantee labor well-being .

If you want to know more about Human Resources and Labor Relations and train in this sector, click here!

Postgraduate in Innovation in Human Resources and Labor Relations

Learn to apply the new models of business communication and to manage conflicts that arise in a company.

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