Despido disciplinario
What are my rights?
What are my rights?
Under our labor legislation, the employment relationship between the employee and the employer may end in various ways, such as the mutual agreement of the parties, the termination of the time agreed in the contract or by the unilateral decision of the employer or dismissal of the employee.
Also, it will be possible to choose between different types of dismissal: collective, objective, or disciplinary, the latter being one of the most frequent forms of unilateral termination in the usual practice.
Causes for disciplinary dismissal
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The causes of disciplinary dismissal according to the Estatuto de los Trabajadores defines disciplinary dismissal as the termination of the employment relationship by decision of the employer, based on a serious and culpable breach of the worker(artículo 54 ET). Among this class of non-compliance are:
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- Repeated and unjustified failures to attend work or to be punctual to work.
- The indiscipline or disobedience to the employer, as well as verbal/physical offenses both to the employer and to the people who work in the company and to the family members who live with them.
- The abuse of trust in the performance of work.
- The abuse of trust in the performance of work.
- The continuous and voluntary decrease in work performance.
- The regular drunkenness or drug addiction when they have a negative impact on the job.
- Harassment on the grounds of racial, ethnic origin, religion, disability, age, sexual orientation or sexual harassment or harassment on the grounds of sex, both to the employer and to other employees of the company.
On this last breach I advise you to read this posts. You can access here
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The Estatuto de los Trabajadores thus offers a non-closed list of contractual breaches that may result in the disciplinary dismissal of the employee, although the Collective Bargaining Agreements usually include, in addition, other specific causes.
How is a disciplinary dismissal carried out?
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Dismissal for disciplinary reasons must always be notified in writing to the employee, stating the reasons for dismissal and the date on which it is to take effect. However, collective bargaining agreements may establish other formal requirements for dismissal.
The disciplinary dismissal may be challenged following the procedure established in articles 103 and following of the Law Regulating the Social Jurisdiction to file a lawsuit for dismissal, always within 20 working days following the effective date of the dismissal.
After being challenged, the dismissal will be classified as unlawful or null and void: unfair.
After the challenge, the dismissal will be classified as proper, improper or null:
- It will be considered proper when the employer fully demonstrates the breach on which the disciplinary dismissal is based; it will be improper, on the contrary, when the breach is not accredited or when the manner in which the communication is made does not comply with the provisions of the Workers’ Statute.
- The dismissal based on any cause of discrimination prohibited by the Constitution or the law, or produces a violation of the fundamental rights and public freedoms of the worker, including assumptions such as:
- The disciplinary dismissal of a person during the periods of suspension of the employment contract due to birth, adoption, fostering, risk during pregnancy, etc.
- The dismissal of pregnant workers or of persons who have requested leave or who are on leave, as well as the dismissal of female workers who are victims of gender violence.
- The dismissal of pregnant workers or of persons who have requested leave or who are on leave, as well as the dismissal of female workers who are victims of gender violence.
- The dismissal of persons after having returned to work at the end of the periods of suspension of the contract due to birth or adoption, when not more than 12 months have elapsed from the date of birth or adoption.
What are my rights under a disciplinary law?
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The rights of a disciplinary dismissed worker will depend on the qualification given to the same. Thus:
- In the event that the disciplinary dismissal has been declared fair, the employment relationship will be extinguished and there will be no right to compensation for the worker, but there will be a right to funding and unemployment benefit, provided that the worker has contributed at least 360 days in the six years prior to the unemployment situation. It must be requested within 15 days from the date of the dismissal.
- If the dismissal is made, the employee must be entitled to unemployment benefits.
- If the dismissal is classified as improper, the employer may opt for the readmission of the worker, paying the wages for processing, or the payment of the compensation to the worker established in article 56 ET.
- The disciplinary dismissal declared null will result in the immediate reinstatement of the worker in the company, paying the wages lost.
If you wish to read about similar topics, you may also be interested in a post about What is a dismissal due to supervening ineptitude?
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