As we mentioned in the previous article, During the next posts we will analyze the different types of dismissal. And In the previous post we talked about objective dismissal, This time we will deal with disciplinary dismissal.
What is a disciplinary dismissal?
Disciplinary dismissal is what occurs when a company unilaterally terminates the employment relationship with a worker for serious and culpable non-compliance with this. It is the harshest sanction that can be imposed on a worker and usually lacks compensation..
Where is this dismissal regulated??
This type of dismissal is regulated in the articles 54 y 55 of the Workers' Statute and for it to be considered valid, the worker must incur a breach serious and guilty. But what do these two terms mean??
Serious non-compliance is one that manifests such importance that the only solution is to fire the worker.. This statement seems not very objective., Therefore, it will be the judge who in each case determines whether this serious breach of the worker occurs based on different criteria. (seniority in the company, fouls committed, worker conduct...) Culpable means that the breach must be caused by intent., negligence or fault of the worker.
Points that must be taken to carry out a disciplinary dismissal
In the event that the breach was serious and culpable, a series of formal requirements:
- The dismissal must be notified in writing to the employee, and the dismissal letter must state the facts that motivated it and the date of dismissal..
- According to the collective agreement, other formal requirements may be established for dismissal..
- If the worker was a union delegate or legal representative of the workers, contradictory file must be opened.
- If the worker was affiliated with a union with the knowledge of the employer, This must give a prior hearing to the union delegates of the corresponding union section.
If these requirements are not met, the dismissal would also be effective, but it could be classified as unfair dismissal and sue the company for this purpose.
What are the justified causes for disciplinary dismissal??
The causes susceptible to disciplinary dismissal included in the Workers' Statute are the following::
- Repeated lack of attendance or punctuality The Workers' Statute does not establish a specific number of absences, so it will be necessary to look at what is established in the collective agreement.
- Verbal or physical offenses to the employer or to their colleagues or relatives.
- Disobedience or disciplinary offense at work when it is serious and unjustified.
- Continued and voluntary decrease in performance of work.
- The violation of contractual good faith, such as in cases of poor customer treatment or leakage of confidential information. Also abuse of trust in the performance of work.
- Drunkenness or drug addiction repeatedly when they have a negative impact on work.
- He harassment for religious reasons, racial, ethnic, age, disability, sexual orientation, or by reason of sex, both to the employer and to other members of the company
- By causes established in Collective Agreement.
One of these causes is enough to consider a dismissal appropriate., several do not have to be fulfilled at the same time.
What are the effects of disciplinary dismissal?
When carrying out a disciplinary dismissal, The employer must notify the employee in writing.. This document must state the reason for the dismissal and the date on which it will become effective.. This dismissal letter is essential, since the only facts that will appear before a judge will be those reflected in the dismissal letter, There cannot be new accusations against the worker by the company.
After communication, It will have to be a judge who qualifies the dismissal, being able to classify it as appropriate (disciplinary), null or void, producing different effects depending on that qualification given by the judge:
- If finally the judge considers that the dismissal is appropriate, The employment relationship will be dissolved immediately and without the right to any compensation for the worker., although you must collect the settlement and be entitled to unemployment benefits (*)
- If the dismissal will be classified as unfair, The employer may choose between reinstating the worker or paying the corresponding compensation.. This decision corresponds solely to the employer., except if the worker is the legal representative of the workers.
- If the judge considered the dismissal null and void, The worker would have the right to re-enter the company, in addition to receiving processing salaries (those that he would have received for his work during the time the challenge lasts)
(*) There are companies that agree with the worker to simulate a disciplinary dismissal so that the worker can access unemployment benefits., but be careful with this, because it can result in a considerable fine for the employer and the worker..
In short, Disciplinary dismissal is one of the most frequent methods of termination of the employment relationship, Therefore, it is important to get good advice from a professional and know the options available to both the worker and the employer..
In Vázquez and Manchón we are experts in labor advice, Therefore, we make ourselves available to companies and workers to resolve your doubts about disciplinary dismissals..
