Dismissal is defined as the decision of the boss, employer or employer to terminate the employment relationship between him and the employee.
This dismissal can be classified according to some characteristics:
- Disciplinary dismissal: When the employee has made a serious breach at work.
- Objective dismissal: When the employer decides to terminate the employment relationship and terminates the worker's contract and justifies the dismissal with a set of reasons that are objective.
- Collective dismissal: When the objective dismissal affects a large number of people who belong to the same company.
- Unfair dismissal: When the employer does not demonstrate labor breach on the part of the employee, that is, the formal requirements to dismiss him are not met.
Below we will explain each one and its characteristics in detail as well as examples so that you can differentiate and understand them better.
DISCIPLINARY DISMISSAL:
This type of dismissal is when the employer, due to an unjustifiable or serious breach, makes the decision to end the employment relationship between the two.
According to article 54 of the workers' statute, the following actions are called serious labor breaches:
1. Frequent unexcused absences, like being late for work.
2. Labor indiscipline and not abiding by rules within the workplace.
3. Physical or verbal violence against the employer or any person who works with him as well as the relatives with whom he lives.
4. When there is abuse of trust by the employee towards the employer.
5. Failure to comply with the work agreed upon at the time of being hired or that its performance continually decreases.
6. Consumption of alcohol or drugs and that consequently affect the work of the labor employee.
7. Sexual harassment of employees or employer and discrimination based on race, sexual orientation, age, religion, among others, against anyone who works with him.
Disciplinary dismissal letter example.
Luis works in a restaurant. Less than a month ago he had a conflict with one of his co-workers; For this reason, a sanction was applied to Luis where it was specified that he committed a serious offense, he was suspended from work for 10 days without pay. But a week ago the scene was repeated with another colleague, but this time he went further and hit him. For this reason, the company decides to opt for the disciplinary dismissal applied to Luis for having physically assaulted a co-worker.
But this does not end here, because this type of collective agreements They always have a section where it is intended for misconduct and their corresponding sanctions and where, in the case of very serious misconduct, they can be punished with the disciplinary dismissal of the employee.
This type of disciplinary dismissal, can also be considered as appropriate, inadmissible or null.
- Dismissal. When the causes or justifications mentioned in the dismissal letter are fully demonstrated. In addition to the fact that the employer will not have to pay any type of compensation to his former worker.
- Unfair dismissal. When the causes mentioned in the dismissal letter cannot be proven in addition to not having followed the requirements formally required by law. In this case, the employer must decide between returning the job to his worker or compensating him. If he chooses the latter, he must pay him 33 days of salary per year that he has worked, with a limit of 24 monthly payments.
- Void dismissal. When there is discrimination of any kind, example: dismissal for practicing a different religion, your sexual preference, skin color or appearance in general. The employee must be reinstated, placing him in the same position where he worked, in addition to paying him the wages he had stopped receiving from the day he was fired.
OBJECTIVE DISMISSAL.
It is the type of dismissal for which the employment contract is terminated for reasons of economy or organization or production techniques by the company.
Said causes are established in article 52 of the ET.
Example of an objective termination letter.
Laura worked in a fabric manufacturing company, but on June 11 her contract ended due to objective dismissal, and in this case she was awarded a letter, where the company alleged economic reasons, since said company was going through a stage of continuous losses for 5 years.
In the same way that the unfair dismissal, the dismissal objectively, can become appropriate, unfair or null, if the employee asks for help to the judicial means to make a challenge.
This type of dismissal is entitled to a compensation of 20 days of salary per year that was worked for the company with a maximum of 12 monthly payments.
COLLECTIVE DISMISSAL.
This type of dismissal is carried out when the collective dismissal begins and affects a considerable number of workers who work in the same company.
It is considered collective dismissal when:
- 10 workers are laid off from the same company that has a total of 100 workers in their charge.
- 10% of the total number of workers working in the same company that has a number of employees between 100 to 300 employees.
- 30 workers in the case of companies that have more than 300 workers working for them.
In the same way as objective dismissal, in the case of collective dismissal, you must compensate with a minimum of 20 days of your salary for one year of work in the company with a limit of 12 months.
The challenge of the dismissals from, inadmissible or null.
In the event that the worker is not satisfied with the dismissal that was applied to him by the company where he worked, what he has to do is make a legal challenge, but this must be done within 20 business days, said challenge is carried out by means of the conciliation ballot.
After making the challenge, the judge is in charge of declaring the dismissal as appropriate, inadmissible or null. If it is declared admissible, it means that the company has complied with all the legal requirements to justify the dismissal due to internal problems.
After being fired, is it possible to access unemployment?
Regardless of the case of dismissal (disciplinary, objective or objective) the worker is under the legal situation of unemployment and for this reason you can request the benefits provided for unemployment and therefore, you are fully entitled to request the unemployment benefits that correspond to you with respect to the contributions you have accumulated.
At the time of requesting unemployment, the dismissal must be accredited by means of the company certificate. If the worker makes a claim towards dismissal, it will be credited with the conciliation act, whether administrative or legal, in the same way it can with the legal sentence that the declaration of the appropriate or unfair dismissal was made.
If the dismissal is unfair, it must be proven that the employer or employee is not eligible for reinstatement.
UNFAIR DISMISSAL.
There are 2 causes that make the declaration of inadmissibility in a dismissal:
1. The formal requirements that were legally required were not met for any reason.
2. The justifications given by the employer do not legally argue for the dismissal, which they call "material reason for dismissal."
Below we list the general requirements that a dismissal must have, whatever your type:
- The employee must always be informed in writing of the company's decision not to continue employing him and it is an unavoidable requirement.
- Explain the reasons and the facts of the breaches that are awarded to the employee, if it is the case of disciplinary dismissal; or if it is due to objective dismissal, the causes that led to the decision to terminate the workers under their charge should be explained.
- The date on which the dismissal will take effect must be specified, and that obviously should not coincide with the date on which the decision to dispense with their services was communicated. For example, the worker can be informed a couple of months in advance before the dismissal deadline.
- Contradictory files should not be processed in the case of disciplinary dismissals of the representatives of the employees or delegates of the workforce, as well as not listening to the affected worker, or to the members that make up their union. Regardless of whether this is the shop steward and the company knew of this condition of the employee.
Failure to comply with any of these formal requirements will result in the dismissal being classified as inadmissible.
It is important emphasize that the employer is the one who is obliged to prove the causes that were reflected in the dismissal letter.
Regardless of whether the formal requirements are met, the extinct decision will be understood as inadmissible if the worker does not provide adequate justification for the reason for dismissal.