Unfair dismissal

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Unfair dismissal is the termination of the employment contract by decision of the employer and that does not meet the requirements required by law for the dismissal to be considered appropriate.

The dismissal is classified as inadmissible for formal or substantive reasons in the employer's decision.

It is an unfair dismissal for substantive reasons in the following cases:

  • When it has not been possible to prove the cause that the employer indicates to cut the employment contract.
  • When the facts, even if they have been proven, are not serious enough for the sanction to be dismissal. There is the possibility that the sanction is the suspension of employment and salary.
  • It must be borne in mind that if the dismissal has objective cause, it will be understood as a proper or disciplinary dismissal. For example, an assault on the employer.

It is an unfair dismissal for formal reasons when the procedure indicated by law to inform and notify the employee of the dismissal has not been followed. For example, when the deadlines and the required notification have not been met.

Effects of unfair dismissal

When the dismissal has been declared inadmissible, there is the possibility of choosing between reinstating or compensating:

  • Ordinary worker: The employer can decide whether he wants to compensate or reinstate the dismissed worker on a regular basis.

In case of reinstatement, the wages that the worker has not received must be paid for the duration of the termination of the contract. You are returned to your usual position or duties.

  • Public employees of the administration: There is no option, and the only possibility if the unfair dismissal is declared is reinstatement. You have the right to receive unearned wages for the duration of the unfair dismissal.
  • Workers' legal representative: Exception to the general rule about who decides whether to reinstate or compensate.

When the unfair dismissal of a legal representative of the workers has been declared, it will be the representative himself who will decide whether he wants reinstatement or compensation.

The reinstatement acts in the same way as before, you will be paid the wages that you have not received during the duration of the unfair dismissal.

Procedure

In the event that the worker decides to go to trial against the company so that the court can rule on whether there is unfair dismissal, it is mandatory to attempt a prior conciliation with the company.

Therefore, before filing a claim for dismissal, an attempt must be made to reach an agreement with the company. If it is not done, the claim will not be accepted.

This is a unique feature of the dismissal procedure in Spanish law that differentiates it from any other jurisdiction: administrative, civil, criminal, etc.

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