Unfair dismissal

Can you imagine an ordinary day, when you leave your house with the best of spirits on your way to work and when you arrive you find out that the company you work for has decided to dispense with your services and you did not even think that something like this was going to happen? Well, if this is your case, or that of someone you know, you are facing an unfair dismissal.

Relax a little, there is still a chance to act to change the situation. But for all this, it is essential to have at least basic notions of what is happening, in order to know what to do.

What is an unfair dismissal?

It is important to highlight this point, when we talk about unfair dismissal we are referring to the fact that a company decides to dismiss one of its employees without any apparent or justifiable reason or motive.

If this were to happen to you, that you are fired and you believe that there are no appreciable reasons for the company to take this drastic decision, at the moment of signing the dismissal act, it is necessary that next to your signature there is a written “not in agreement”, so, with this, you will be able to carry out future claims.

A dismissal can be considered unfair if it complies with the following two conjectures:

  • When the employer has breached the legal requirements: this refers, for example, to the non-delivery of the letter of dismissal or the failure to hold a consultation period prior to the collective dismissal.
  • When the employer’s decision is not based on legal grounds: In this way, the workers’ statute regulates the so-called objective dismissal; such dismissal is the one that proceeds when certain causes intervene. It also admits disciplinary dismissal, arising from the employee’s non-compliance and regulated, in part, in the collective bargaining agreements.

If the termination decision is not based on any of these causes, then the dismissal will be considered unfair.

How unfairness is determined?

In order for a dismissal to be considered unfair, it must be qualified (in a prevailing manner) as such in a court of law. For this reason, the dismissal must be challenged before a certified judge.

The whole procedure must be initiated within a term no longer than a deadline (generally about 20 days) after the dismissal. For this, the worker will have to go to the social order of his jurisdiction.

The first thing to do will be to try to reach an agreement through conciliation. In this way, it is important to point out that the employer can admit the unfairness of his decision without the need to go to court. For this, it will be sufficient that he pays the compensation corresponding to an unfair dismissal at the moment of delivering the dismissal letter or that he submits during the conciliation, granting the worker the reason and paying him the corresponding compensation.

Therefore, the payment of the indemnity allows the employer to liquidate any labor relationship as long as it is not in a case of nullity.

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The company decides to compensate the employee instead of reinstate him/her

In this case the company must pay the equivalent in working days per year (generally a little more than one month of work), depending on the laws of the jurisdiction.

What are the consequences of an unfair dismissal?

However, when the fact that an unfair dismissal has already been substantiated, the employer has 5 days to reinstate the employee or, on the contrary, to compensate him/her.

There are cases in which the company, having passed the 5-day period after the dismissal has been deemed unfair, has not responded. In these circumstances, it is considered that the company does not accept the terms. What happens when the company agrees to reinstate the employee or pay the severance payment will be discussed below:

The company decides to reinstate the employee

Then it must do so with the same working conditions that the employee enjoyed before being dismissed. In addition, a payment for the so-called “processing wages” will be due, i.e., the relevant days since the employee was dismissed until he/she has been reinstated, or in case of resorting to judicial proceedings, since the judge imposed the sentence of unfair dismissal.

Layoffs and severance payments

This point is of utmost relevance. If an unfair dismissal is declared and the employer prefers not to reinstate its employee, the latter will be entitled to an indemnity for unfair dismissal.

In general, the amount of the indemnity is equivalent to 33 days of salary per year of service, with a limit of 24 monthly payments.

To calculate it, a rule of three can be used. So, if for 12 months worked, you are entitled to 33/45 days for X months worked, you are entitled to X days. These days must be multiplied by the salary per day, and we will know the indemnity we are entitled to. The indemnity 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.

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What are the employee's rights after dismissal?

Only in the case of null and void dismissals is reinstatement mandatory if requested by the employee, because values such as non-discrimination or protection of special situations are taken into consideration. In unfair dismissals (which are the majority), even if the employer has not succeeded in explaining the reason for the dismissal, he will not be obliged to reinstate the employee, being sufficient to pay him the corresponding compensation.

In circumstances such as these, the employee’s interest will be to ensure that he/she receives the compensation to which he/she is legally entitled.

How to act in the event of an unfair dismissal

When you are facing a dismissal, the most important thing is to assess the causes, motives and reasons why you have been dismissed from your job, and if these are justifiable, reasonable and objective. In case you do not find valid or justifiable reasons for your dismissal and you consider that the company has acted improperly, we advise you to do the following.

In an unfair dismissal the employee has two options, to accept it or not to accept it. If you accept it, you will have 15 days to file the unemployment claim. But if you do not agree with the dismissal, you must sign the documentation presented by the company as “not in accordance”, in order to take legal action. Remember that you must take into account the deadlines for these procedures. Once you have made your choice, you must file your case in the court of your jurisdiction.

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