The so-called “dismissal unfitness of the employee” is configured in our labor law as one of the objective causes for which an employment contract may be terminated.
In particular, Article 52 ET refers to the fact that the termination of the contract may be caused by the “inability of the employee known or arising after his actual placement in the company”. The Supreme Court has interpreted the concept of “ineptitude” as “the disqualification or lack of professional faculties that originates in the worker’s person, either due to lack or updating of knowledge, or due to deterioration or loss of work resources, speed, perception, skill, ability to concentrate, etc.”. Now, in order for the ineptitude of the worker to be considered a requirement for the termination of the contract for objective cause (art. 52, a) ET), the law requires that it be “known or supervened after the effective placement of the worker in the company“. Therefore, the ineptitude existing prior to the completion of the probationary period may not be alleged after the completion of the probationary period.
What is understood by ineptitude?
In view of the absence in Article 52, a) ET of a specific definition of the concept of inaptitude, it is necessary to resort to case law. Indeed, the High Court of Justice of the Basque Country defined in a judgment in 2017 (sentence 1238/2017, of May 30) that, in order for the contract to be terminated due to the lack of aptitude of the worker, certain requirements are necessary:
- it must arise from concurring circumstances in the person of the employee, due to the loss of his or her faculties to perform the services for which he or she was hired: either due to a decrease in his or her physical or legal capacity to carry out the work (for example, loss of driving license), or due to his or her failure to adapt to technical innovations in his or her job (which constitutes a different cause, as provided for in art. 52.b ET);
- it must be permanent and not merely occasional;
- it must have arisen after the commencement of the employment contract;
- It must have arisen after the commencement of the employment contract;
- it must affect the central element of its provision of services, not being sufficient the mere loss of aptitude for some specific tasks or, even, the one that affects the basic tasks, but with a minimum impact, since what the rule wants to protect is the interest of the employer for the usefulness of the services of that worker;
- Finally, it must be unrelated to the employee’s will, so that it does not include cases of voluntary decrease in performance, whose appropriate channel is the disciplinary dismissal contemplated in art. 54.2.e) ET.
Am I entitled to compensation?
In effect, it is provided in the Revised Text of the Workers’ Statute that, upon termination of the contract for objective causes -among which is framed the supervening unfitness of the worker-, a compensation equivalent to 20 days per year of service will be made available to the worker, prorated by months for periods of time of less than 1 year and with a maximum of 12 monthly payments. The indemnity shall be paid simultaneously with the delivery of the written communication stating the cause of the objective dismissal. In the case of an objective dismissal, the legislation also provides that during the mandatory 15-day notice period the employee shall be entitled to a leave of absence of six hours per week in order to seek new employment.
Can a dismissal for unsuitability be challenged?
Yes. Like a disciplinary dismissal, the employee has a period of 20 working days to appeal the dismissal. Subsequently, the rights of the worker will depend on the qualification given to the same. Thus:
- In the event that the dismissal is declaredfair, the employment relationship will be extinguished and the worker will only be entitled to the compensation previously defined. It shall be understood that the employee is in unemployed for a reason not attributable to him/her.
- If the dismissal is classified as improper, the employer may opt for the remission of the worker, in which case the worker must return the compensation received, or the payment of a financial compensation to the worker (from which the amount of the compensation will be deducted).
- The employer shall be entitled to remission of the worker (from which the amount of the compensation will be deducted).
- Disciplinary dismissal declared null will result in the immediate reinstatement of the employee in the company, with payment of the wages foregone.
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