What is unfair dismissal and what should I do?

A dismissal It is a decision that is made by the company, so unilateral, of terminate the employment relationship with a worker. This decision, however, can be considered as null, coming from either unfair. From Escalante & Pérez Lawyers We tell you what an unfair dismissal is and what you should do if you find yourself in this situation. In addition, it is best to have the comprehensive advice of a lawyer specializing in labor law.

What is unfair dismissal?

A dismissal will always occur when it is the employer who takes the decision to terminate the employment contract with an employee. It is called unfair dismissal to those cases in which the contractual relationship is terminated by any of the following situations:

• In case there is a failure to comply with the necessary formalities, such as notice and the issuance of the corresponding dismissal letter.
• When it is not possible to prove breach of contract on the part of the employee and what the employer alleges in the dismissal letter. For example, when it is not possible to verify that the employee has been absent from their post, is regularly late, etc.

Basically, when the decision to terminate the employment relationship is not justified by law, then we are dealing with an unfair dismissal. However, one should not confuse the unfairness of dismissal with the typology of this and that is related to the reasons: disciplinary, collective, objective dismissal, etc. In other words, all types of dismissal can be considered unfair regardless of the reason that originates them, but it will always be the judge whoever determines this rating.

Consequences of unfair dismissal: Compensation or reinstatement

As provided by the Article 56 of the Workers' Statute, which is responsible for regulating unfair dismissal, when a dismissal is considered as such, the employer has a period of five days, since the dictation of the judgment, to choose one of the following options:

• Reinstate the worker to his position and pay him the unearned salary During the period between the dismissal and the judgment. If the employee already has another job, the amount owed must be paid from the date of dismissal until the employee finds a job, but always before the judgment.
• Grant the worker a Severance pay of 33 days' salary per year of service, as provided for in the Workers' Statute. For periods of less than a year, the months are prorated up to a maximum of 24 monthly payments. If the employer chooses this option, the employment contract is considered terminated.

Termination of a construction contract: Is it considered unfair dismissal?

The termination of a construction contract It can be considered unfair dismissal as long as there is a concatenation of contracts for management contracts. It is important to clarify that it is possible to enter into this type of contract as long as the execution of the work is annual and there is a need for the company to fill a specific, limited, and well-defined position. For example, tasks performed by a third party, but only if the assignment is permanent and truly temporary.

This type of contract is usually common in the public sector, where there is a need for temporary and defined work, due to dependence on a administrative body responsible for maintaining the order of the activity in question and who is generally linked to a budget.

In this sense, it is not viable to resort to this type of contract when the activity that is being attempted to be covered, temporarily, is usual, ordinary and structural of the companyThat is, when it is used as a resource to avoid the permanent contract.

What does the Supreme Court say about this?

It is important to mention the Supreme Court ruling 314/2021 of January 27, 2021This sentence speaks expressly of the legal unemployment status to which a worker is entitled who, after a voluntary leave of absence, is not readmitted to the company; and when the company recognizes, in conciliation, that it is a unfair dismissal.

In these cases, the worker will move to a discharge or similar to discharge status, because the company does not register the worker in the General Social Security Regime. This means that the requirement of article 266 a) of the TRLGSS has been met and the worker may be entitled to a unemployment benefit.

Compensation for unfair dismissal and lack of notice

In case the company does not comply with the requirements, as is the case with notice, the worker will have the right to a compensation. When a dismissal is judicially recognized as unfair because of the lack of formalization (notice), but there is a materialization of this, that is, that the worker cannot continue performing his duties and is dismissed Social Security drop, the employer will be responsible for paying a compensation.