Dismissals can be classified based on the reasons for which they occur or the legal categorization made by the judge.. According to the reasons for which the dismissal occurs, could be aim, when it occurs for some objective cause contemplated within the framework of the law; disciplinary, when it is a disciplinary measure for some serious behavior of the worker; o collective dismissal when the measure affects a large part of the company's workforce.
This time we will talk about the objective dismissal, its causes, effects and how compensation is calculated.
What is objective dismissal?
The objective dismissal is one that occurs under any of the assumptions contemplated in the article 52 of the Worker Statute as an objective cause to terminate the employment relationship. Although it is known as “objective dismissal”, The most common thing is that this term is not used when communicating it to the worker., but to resort to expressions such as “economic causes”.
Objective causes of dismissal
- When an employee does not adapt to technical changes in his or her job, The employer can resort to objective dismissal.
But there are conditions: changes must be reasonable and, before saying goodbye, The company must offer the worker the necessary training to adapt. This training must take place during working hours and be paid as work time.. Only yes, after two months since the changes were applied or the training was completed, the employee still does not adapt, The employer may terminate the contract.
- Due to the ineptitude of the worker, is previously known or occurred after entering the company.
- When there are sufficiently proven reasons of an economic nature, technical, productive or organizational that entail the need to reduce jobs.
These reasons are the most cited when carrying out an objective dismissal.. In this case, the company must attest to the need to reduce costs to remain active and the suitability of dismissing the worker to achieve the reduction of said costs.
- If any of the causes listed in the article occur 51.1 of the Workers' Statute (as economic causes, techniques, organizational or production), the company can carry out an individual objective dismissal. However, if the number of affected workers exceeds the established legal limit, It will no longer be considered an individual dismissal, but a collective dismissal (o GAME), which involves a different and more complex procedure.
- The worker's repeated absences If these represent the 20% of the working day in two consecutive months, or the 25% of the same in four discontinuous months in periods of 12 months.
Those resulting from the general strike of workers will not be considered lack of attendance., accident, maternity or risk in pregnancy, Diseases derived from pregnancy, childbirth or breastfeeding; paternity, vacation, medical leave, physical or psychological consequences derived from gender violence or work accident. Nor those that are due to cancer treatment or a serious illness..
What are the requirements to carry out an objective dismissal?
To carry out an objective dismissal, The employer must notify the employee in writing. alleging the cause of termination of the contract, in addition to delivering compensation corresponding to 20 days per year of service, con 12 maximum monthly payments. Instead, If the worker appeals the employer's decision and the dismissal is considered unfair, los 20 compensation days would become 45 in the case of the period worked prior to February 2012 and in 33 for the worker after said date.
After the labor reform, he advance notice of objective dismissal became 30 a 15 days from the delivery of the writing until the effective date of termination of the employment contract. Once communication has been made, The worker can claim it in the following 20 business days, and also during this notice period the worker has the right to have six hours a week to search for another job without affecting his salary..
How is the objective severance pay calculated??
With the aim of clarifying the calculation of compensation when facing a collective dismissal, we will perform the calculation based on a practical case.
Manuel was employed in the same company since 2005 until 2015, that is to say, for ten years in total, with a gross salary of 1200 € monthly with prorated extra payments.
The first thing to calculate is how many months Manuel has worked.
10 years x 12 months = 120 months
Next we must see the relationship between the months worked and the days that would correspond to compensation.
(120 x 20) /12 = 200 compensation days
Now we calculate the daily salary
(1200 x 12) / 365 = 39,45 €/day
Finally, we multiply the days of compensation by the daily salary.
200 x 39,45= 7890 €
Since the maximum monthly payments are 12, We must check that we have not exceeded that maximum.
1200 x 12= 14400 €
Since the compensation that Manuel should receive is 7890 €, is less than the maximum (14400 €), so it does not exceed this maximum.
We know that it is not always easy to discern between the different types of dismissal or to know if they are justified or not and what our rights are.. At Vázquez y Manchón we can advise you, whether you are an employee who has been laid off, as if you are an employer and you are not clear about the guidelines when carrying out an objective dismissal. Call us!
