One of the hardest moments that must confront a worker’s dismissal. This is a formal notice of what, in many cases, is suspected in the days, weeks or months earlier. The role of the labor lawyer is very important for the affected enjoyment of all their labor, social and economic rights
Once the company gives the pink slip to the worker, these are the steps and decisions that affected should take:
1 – If you deliver the letter on the fly, it is usual question of disciplinary dismissal or objective dismissal. With or without notice.
2 – Check that the date of the letter of dismissal is correct. If it is not to write it by hand. With his own hand.
3 – If the relevant department requires a signature and we are not satisfied, if in doubt, there should be no problem signing. But you have to write the words ‘read and nonconforming’. Always with the delivery date.
4 – The worker must keep the original letter signed and sealed by the company dismissal. It seems obvious, but sometimes not done and difficult for the lawyer, who will not know the exact date, the time, the causes, conditions, etc.
5 – It is always better pick it up at first, but if we see something irregular or nerves take over, sending requested by burofax -has our actualizada- direction. There is no fear that witnesses deliver us, while we can incorporate warnings prior to the letter.
6 – Eye with burofax. We must not reject it, because deadlines can start running and firing are very short: 20 days.
Once the letter in our hand, what should we do?
With all the documentation that the company provides, the worker should see his lawyer in labor law. To check whether the calculation of the amount of compensation received is correct – in case of a dismissal goal- 20 days per year are sometimes not well calculated. This can cause transformation in improper firing, with obvious economic consequences.
In the case of a disciplinary dismissal, the company must be incorporated in the detailed letter and substantiated the reasons for the dismissal and not worth the mere mention of the statute violated article. To calculate the compensation, his lawyer will consider:
1 – The actual length of service. Information interim periods without work ‘officially’ contracts with other companies in the group or the like, low holiday, or even work in temporary employment for the company. All these and many more circumstances must be taken into account to quantify the firing properly, an inexcusable error again becomes a target unfair dismissal.
2 – The salary for purposes of dismissal. Not necessarily match the display on the payroll, which will be the mínimo-, it should be considered as wage agreement, refitting of real class and quote. of pay unpaid payroll for different reasons.
With these references, among others, we quantify the dismissal. If he were not adequately quantified by the company become, as we have already advanced, objective dismissal ‘for cause’ in inadmissible. This would have economic consequences and the company should substantially increase the compensation received. Sometimes the monetary differences are more noticeable, unidentifiable at first sight, if not after a client meeting with the lawyer. The experience of the latter should serve to find out through a series of questions which neither the worker himself knew he could signify affections of his dismissal.
The importance of labor lawyer
Labor law is complex enough to avoid being advised by anyone. The customer should contact your labor lawyer trusted and properly protect their rights. You must remember that in this respect the deadlines are extremely short. The customer should not forget to bring:
– Letter of dismissal.
– Last payrolls. Ideal last year.
– Report working life as current as possible.
Layoffs, its rating.
When a company makes the decision to fire someone, it is possible that this decision is not legally correct, so, it is possible that within 20 working days (ie discounting on Saturdays, Sundays and holidays), the worker you can challenge the decision in court.
In the proceedings challenging the dismissal, our labor law requires us first to have attempted a prior conciliation to see if you have room for negotiation before going to court.
If conciliation is not reached any agreement, it is studied whether the dismissal is set to right in court. After studying the case, the dismissal may be classified in three different ways by the Court, presented in this blog post.
- DISMISSAL VOID
This is the most severe rating in our labor law. It involves the immediate reinstatement of the worker, as well as payment of wages that have not received since the worker has been fired until he was readmitted.
The dismissal may be considered void if:
- It has been discriminatory
- It has been made in breach of fundamental rights (Eg right to privacy or freedom of expression or free association).
- Or if rights have been violated reconciling work and family life. For example, if a worker fired for being pregnant, or requesting reduced working hours or when returning from maternity leave, paternity leave, among others. This is because business is considered that such actions violate the right to equality between men and women.
There is no dismissal if, for example, although in the exercise of rights of reconciling work and family life, firing off for other reasons not related to that.
For example, pregnant worker who recorded stealing large sums of money into the company.
- Unfair dismissal
A dismissal is unfair if it is not accredited by the alleged breach, or magazine employer is not particularly serious or not proportional the sanción- and when they had not complied with the formal requirements of the letter of dismissal are basically three: that is notified in writing, stating the facts that motivate and date when it takes effect dismissal
For example, a worker fired for disobedience to work, but in the letter does not include a specific reason or any facts alleged.
The inappropriateness rating means that the company can choose between two options:
- A reinstatement of the worker and payment of lost wages.
- Or you can choose not to reinstate the worker and pay compensation consisting of:
- 45 days of salary per year worked, up to a maximum of 42 months if the employment contract is before the February 12, 2012.
- 33 days of salary per year worked, up to a maximum of 12 months if the employment contract is after the Feb. 12, 2012.
- DISMISSAL FROM
Dismissal is appropriate when you consider that the company is right: when the causes of dismissal are credited and no formal defects in the termination letter.
In this case, the worker is not entitled to compensation or payment of unpaid wages. This does not mean, however, that can not obtain unemployment benefits, depending on their level of contributions.
Disciplinary dismissal is the most severe penalty imposed on an employer worker. This is a dismissal whose primary reason for termination of contract, is a constitutive worker imputable to conduct a very serious offense.
Sanctionable conduct in a disciplinary dismissal required by law, contractual breaches are the following:
- Absences or punctuality at work unjustified and repeated.
- Indiscipline or disobedience at work.
- Verbal or physical the employer or people working in the company or relatives living with them offenses.
- Transgression of contractual good faith. abuse of trust is also penalized in job performance.
- The decrease continuously and voluntary performance standard or agreed work.
- Drunkenness or drug addiction if adversely affect the functions plunged.
- workplace harassment or mobbing on grounds of racial or ethnic origin, religion or belief, disability, age or sexual orientation and sexual harassment or gender the employer or people working in the company.
- Other causes marked in the Collective Agreement
LETTER IN THE DISCIPLINARY DISMISSAL DISMISSAL
In these cases we have discussed above, in the letter of dismissal to be offered to the worker detailing who has been dismissed by some of these reasons, but not the dismissal is correct. The employer can not recognize that it is unfair dismissal, only a judge can determine. Therefore, if demands not judge your company and does not declare the illegality, you can not collect compensation.
In the letter the reasons for a clear and justified manner and date the dismissal will take effect, regardless of other formal requirements that may require the Collective Agreement should appear.
HOW TO DISPUTE a disciplinary dismissal?
Every worker has 20 working days from the effective date of dismissal (not when you handed the pink slip) to file a lawsuit against dismissal. Obviously earlier it attempts to reach a settlement agreement and submit the ballot in the registry on the Mediation, Arbitration and Conciliation (SMAC).
Reconciliation is prior to filing a lawsuit in the social court proceedings. The aim is to avoid court proceedings with an agreement between the parties in conflict situations such as layoffs or substantial changes in working conditions. If finally there is demand in the Social Court, must prove the intent of providing conciliation prior certificate act of conciliation.
DISCHARGE DISCIPLINARY:, unfair O NIL
The judge will determine whether the dismissal may be classified as appropriate, inappropriate or no.
- It is a dismissal if the cause that has motivated the contractual termination is justified form and substance.
- It will be unfair dismissal when it can not be justified reason to be led to dismiss the worker, nor in the case of a wrongful dismissal.
- dismissal nullIf it is proven that the dismissal is a result of racial, religious, gender, if it is based on a pregnancy or maternity, workers who have applied for family care leave, by seconding a strike. Is basically that dismissal was motivated by discriminatory grounds prohibited by the Spanish Constitution, the law or have violated the fundamental rights and freedoms of trabajador.Cabe noted that classification of a dismissal as null is not a right to compensation but the immediate reinstatement of the worker, with full payment of wages processing.
As mentioned, once we receive the pink slip, the best advice is to carry out a good demand and claim what is right. Hiring a good law firm is key to carrying out good demand to defend our interests.