All worker wants to keep his job. However, there are times when, no matter how hard you try, you face the consequence of losing your livelihood. The problem is that sometimes that loss comes from a Unfair dismissal.
But what is an unfair dismissal? What causes cause this type of work stoppage? What can be done? Is there compensation? If you want to answer all these questions, then we will help you solve them.
What is an unfair dismissal
An unfair dismissal, regulated by article 56 of the Workers' Statute (ET) establishes that dismissal is considered that takes place without reasons that are justified by law. That is, there is a work stoppage without any cause that could have been general.
In other words, it occurs when the employer (or the other party to the employment contract) does not justify the dismissal, does not say what has been the justified reason why it ceases to have the services of the worker or what it alleges cannot be corroborated.
This qualification of inadmissible can only be ruled by a judge, who is the one who assesses what the facts and causes are and establishes whether that dismissal has been done by law (with the law) or it is not.
Thus, we can say that a worker faces two types of layoffs:
- The objective, which occurs due to technical, organizational, economic or production causes and which has a compensation of 20 days per year worked, with a maximum of 12 monthly payments and with a notice of 15 days.
- The disciplinary, which is produced by serious, guilty and inappropriate behavior and does not grant you any compensation.
If there is any type of termination of the above, the worker can present a conciliation ballot within 20 days of the dismissal and, if no agreement is reached, file a claim in the social court for a judge to be the that determines if the loss of the job is due, improper or null.
Causes of unfair dismissal
A worker cannot really determine that his dismissal is unfair, and the only cause that would cause, on the part of a judge, to declare it as such would be that, or there is no just cause for the dismissal that has occurred, either under the figure of objective or disciplinary dismissal; Or, if there is a cause, it cannot be proven.
Therefore, we could say that an unfair dismissal is caused by the fact that the reason why that worker has been dismissed from his job cannot be proven.
What to do if I am fired with this formula
Have you been unfairly fired? Well, as we told you, You have 20 days from when you are notified of the dismissal to present a conciliation ballot. This becomes the figure of unfair dismissal, in addition to claiming the amount that you estimate belongs to you.
If after that meeting between the worker and the employer there is no agreement, the fact of having attended and tried the agreement already legitimizes you to file a lawsuit in the social court. When should you put it on? You have a period of 20 days from the notification of the dismissal. But don't worry, when you request the conciliation ballot, time is suspended, that is, it does not run until it is celebrated.
When a judge determines that the dismissal is inadmissible, then gives the option to the company to:
- Readmit the worker. This rarely happens. In this case, if reinstatement is accepted, it must be borne in mind that he must be paid the salary that he would have received during the entire time that he has been unfairly dismissed. And on the part of the worker, if he received compensation for the dismissal, he must return it.
- Pay compensation. It is the most common and what most entrepreneurs and companies choose.
What is the compensation for unfair dismissal
If a dismissal is declared inadmissible, and the company opts for severance, then you will have to pay, instead of 20 days per year worked, 33 days of salary per year, with a maximum of 24 monthly payments.
However, it is possible that there are workers who can earn 45 days per year, with a maximum of 42 monthly payments. Who would they be? Those who have a contract before February 12, 2012.
Something that not many know is that the compensation paid to the worker must be reflected in the income statement. It will be subject to personal income tax, but don't worry, because it is exempt. Specifically, it is discussed in the Article 7 e) of the Personal Income Tax Law what does it say:
«E) Compensation for dismissal or termination of the worker, in the amount established with a mandatory character in the Workers' Statute, in its implementing regulations or, where appropriate, in the regulations governing the execution of judgments, without being able to considered as such the one established by virtue of an agreement, pact or contract.
Without prejudice to the provisions of the preceding paragraph, in the event of collective dismissals carried out in accordance with the provisions of article 51 of the Workers' Statute, or produced by the causes provided for in letter c) of article 52 of the aforementioned Statute, provided that, in both cases, they are due to economic, technical, organizational, production causes or force majeure, the part of the compensation received that does not exceed the limits established on a mandatory basis in the aforementioned Statute for unfair dismissal will be exempt.
The amount of the exempt compensation referred to in this letter will be limited to the amount of 180.000 euros. "
Do you have the right to unemployment?
As you know, depending on how you get fired, you can stop or not. But what happens if a judge declares the dismissal unfair? If your former company decides to pay compensation, the fact that it has been declared inadmissible already gives you the right to unemployment.
Now for have an unemployment benefit you have to meet the requirements, that is to say:
- Have listed a minimum of 360 days in the last 6 years.
- Being unemployed, signing up for unemployment and with the commitment to carry out all possible actions to find a new job.
As you can see, unfair dismissal is a way of protecting workers against the bad practices of employers and companies that consider that they can hire and fire for no apparent reason, depriving that employee of job stability and a job without thereby having something happened to justify it. Do you have any more questions? Tell us and we will try to respond.