KEY ASPECTS OF DISCIPLINARY DISMISSAL

KEY ASPECTS OF DISCIPLINARY DISMISSAL

Disciplinary dismissal is the decision to terminate the employment relationship by an employer with the worker they have hired. In order to be considered as such, two circumstances must occur: there is a breach on the part of the worker, and this is specifically serious and culpable.

As you already know, you can dismiss a worker (disciplinary dismissal) based on a serious and culpable breach by the worker. But you must know what disciplinary dismissal consists of, the causes that can give rise to it, the formal requirements that this type of dismissal must meet, whether the worker is entitled to compensation or unemployment or unemployment and what to do when a worker is dismissed in a disciplinary manner... We'll explain.

Grounds for Disciplinary Dismissal

In accordance with article 54 of the Workers' Statute, the following shall be considered breaches of contract:

1. Repeated and unexcused absences from work or punctuality.
2. Indiscipline or disobedience at work.
3. Verbal or physical insults to the employer or to the people who work in the company or to the family members who live with them.
4. Breach of contractual good faith, as well as breach of trust in the performance of work.
5. Continuous and voluntary decrease in normal or agreed work performance.
6. Habitual drunkenness or drug addiction if it has a negative impact on work.
7. Harassment on the basis of racial or ethnic origin, religion or belief, disability, age or sexual orientation and sexual or gender-based harassment of the employer or persons working in the company.

Just, unfair or null disciplinary dismissal

Disciplinary dismissal can have various legal consequences for the worker or employer, depending on the cause and the way in which it is carried out.

To find out whether a disciplinary dismissal has compensation or not, we have to take into account the rating you have obtained after your challenge. Thus, such dismissal may be:

• Fair dismissal. The employer has complied with the required formalities and proves such non-compliance on the part of the employee. In this case, when the worker fails to comply with his obligations, the company can claim damages. Examples: damage to company property or unfair competition.

In this case, the employer's decision would be validated, and the worker would not be entitled to compensation, although he would be entitled to the corresponding Social Security unemployment benefit, provided that he meets the requirements demanded by it.

• Unfair disciplinary dismissal. Unlike the other, in this case the employer has failed to comply with some of the formal requirements or the breach alleged by the employer has not been proven.

The worker may be entitled to compensation and/or reinstatement in the same job. The compensation to be paid by the company will be 33 days' salary per year of service, with a limit of 24 monthly payments. In the case of contracts signed before February 12, 2012, the calculation will be different.

• Null and void disciplinary dismissal. It has been carried out for discriminatory reasons, violates any of the fundamental rights and public freedoms of the worker or coincides temporarily with periods related to pregnancy, maternity, paternity, adoption or fostering.

If the dismissal is declared null and void, the worker has the right to be reinstated in the company and to be paid the processing wages by the company.

The dismissal will also be null and void in the following cases:

1. That of workers during periods of suspension of the employment contract due to birth, adoption, guardianship for the purpose of adoption, fostering, risk during pregnancy, risk during breastfeeding referred to in article 45.1.d) and e), enjoyment of parental leave referred to in article 48 bis, or due to illnesses caused by pregnancy, childbirth or breastfeeding, or when the decision is notified on such a date that the notice period granted expires within those periods.
2. That of pregnant workers, from the date of commencement of pregnancy until the beginning of the period of suspension referred to in point (a); that of workers who have requested or are taking one of the leaves referred to in Article 37, paragraphs 3.b), 4, 5 and 6, or who have requested or are enjoying the adaptations of working hours provided for in Article 34.8 or the leave provided for in Article 46.3; and that of female workers who are victims of gender-based violence for the exercise of their right to effective judicial protection or of the rights recognized in this law to ensure their protection or their right to comprehensive social assistance.
3. That of workers after having returned to work at the end of the periods of suspension of the contract due to birth, adoption, guardianship for the purpose of adoption or fostering, referred to in article 45.1.d), provided that no more than twelve months have elapsed since the date of birth, adoption, guardianship for the purpose of adoption or fostering.

The provisions of the above cases will apply, unless, in these cases, the dismissal is declared justified for reasons unrelated to pregnancy or to the exercise of the right to leave and leave of absence indicated.

Formalities of disciplinary dismissal

The disciplinary dismissal must be notified in writing to the employee, stating the facts that motivate it and the date on which it will take effect.

Attention. Other formal requirements for dismissal may be established by collective agreement, such as the obligation to process, prior to dismissal, an adversarial disciplinary proceeding, giving the worker the opportunity to make allegations and present evidence in his or her defence, or notification of the dismissal decision to the workers' representatives. Logically, if additional requirements are established in the collective agreement, failure to comply with these formalities may result in the dismissal being declared unjustified for formal reasons.

Notice. Notice is not a mandatory requirement in disciplinary dismissal. It may be granted by the employer in order to ensure the worker's right to an adequate defense of his or her labor interests. Despite this, the employee's breach is usually considered to be of such severity that it justifies the immediate termination of the employment contract.

When the worker is the legal representative of the workers or a trade union delegate, an adversarial proceeding will be opened, in which the other members of the representation to which he or she belongs, if any, will be heard, in addition to the interested party.

If the worker is a member of a trade union and the employer is aware of it, he or she must give a prior hearing to the trade union delegates of the trade union section corresponding to that trade union.

If the dismissal is carried out in breach of the above, the employer may carry out a new dismissal in which the requirements omitted in the preceding paragraph are met. Such a new dismissal, which will only take effect from the date of the dismissal, may only be carried out within a period of twenty days from the day following the first dismissal. By doing so, the employer will make available to the worker the wages earned in the intervening days, keeping him or her registered with the Social Security during those days.

Does the company have to inform representatives about the penalties imposed for very serious misconduct?

Yes. Article 64.4.c) of the SW obliges the company to inform the workers' representatives of all sanctions imposed for very serious misconduct. In these cases, failure to comply with the duty to inform workers' representatives results in the company being subject to an administrative sanction, but in no way does the lack of information affect the validity of the sanction imposed.

Therefore, comply with this obligation and keep evidence (with a receipt signed by the representatives).

How do you appeal disciplinary dismissal?

To appeal the dismissal, both the conciliation ballot must be submitted to the CMAC or SMAC and a legal claim must be filed with the corresponding Labour Court. The legal deadline is 20 working days from the notification of the dismissal.

You can contact our offices for any questions or clarifications you may have in this regard.

Best regards,