It is very likely that throughout our professional life, at some point we will have to face the communication of the termination of our working relationship with the company for which, until now, you had been providing your services. Undoubtedly, the communication of dismissal, either in a grounded or unfounded manner, is one of the situations of greatest tension and uncertainty that we may face in the workplace, a situation that we must overcome by providing ourselves with certain practical information such as the one below:
The communication of the dismissal must be in writing, that is, the company cannot transmit to us "you are fired, take your things and leave" as we are used to seeing in American movies. In the event that they transmit it to us in this way, the communication of the dismissal is not effective and therefore, you do not have to be aware of it since, RDL 2/2015, of October 23, which is approved the Consolidated Text of the Workers' Statute Law, in its art. 55.1, it is indicated that " The dismissal must be notified in writing to the worker, stating the facts that motivate him and the date on which it will take effectTherefore, free dismissal is not legally permitted, and it must be done through a written communication and adhering to the causes set forth in Section 4 of Chapter 3 of said rule.
The types of dismissals that exist in Spain are collective dismissal, dismissal for objective reasons (technical, organizational, productive or economic) and disciplinary dismissal (art. 54 of RDL 2/2015, of October 23). The well-known “unfair dismissal” is classified as such when it is so declared by the courts of justice or, under its recognition by the company and subsequent confirmation by a public official, as the cause of the dismissal is not proven or the company does not proceed in the legally established way.
- The communication or letter of dismissal must be delivered to you along with the liquidation or settlement, which must include the payment of the time worked in the current month, the proportional part of extra payments (in case they are not prorated monthly), the holidays generated not enjoyed, the overtime carried out and any other concept that is pending payment (expenses advanced by the worker, bonuses, bonuses, etc). An important issue that must also be included in the liquidation is the severance pay, which will be calculated differently depending on the type or acknowledgment of the dismissal, that is:
- For the objective dismissal, it will be 20 days per year of service, with periods of time less than 1 year and with a maximum of 12 monthly payments prorated for months. For collective dismissal (previous Employment Regulation Files) the compensation will be paid according to the calculation provided for objective dismissals, as long as, no other superior conditions are agreed within the collective bargaining with the Legal Representatives of the Workers. For the dismissal declared inadmissible, it will be 33 days per year of service, prorating for months periods of time less than 1 year and with a maximum of 24 monthly payments, being applicable for periods worked prior to February 12, 2012, compensation at the rate of 45 days per year of service,Prorating for periods of time less than 1 year and with a maximum of 42 monthly installments.
The termination of a temporary contract for a specific work or service or, possibly due to production circumstances, should not be confused with a dismissal although its termination is compensated with the payment of compensation. Currently for contracts formalized since 2015, 12 days salary is established for each year of service, as introduced by Royal Decree 10/2010 of June 16, on urgent measures for the reform of the labor market, the compensation being based on the year of formalization of the employment contract, for a smaller amount, ranging from 8 to 11 days of salary for each year of service.
- Once you have the dismissal letter and the settlement or settlement in front of you, they must give you a copy of said documentation, being likely to be in doubt whether to sign it or not, given the logical questions that may arise at that time to collation with the information and calculations that the company provides you. It is highly recommended to check the content of said documentation with a professional, however, the best on-site solution is to sign all the documentation as “non-compliant” or “pending revision”, since this way they will deliver the check or give you order for the payment of the bank transfer with the amounts of the compensation, balance and settlement in your favor. Occasionally,You can find companies that indicate you when signing said documentation as “not compliant” that they will not make the payment by check or bank transfer. Well, in that case and to avoid this problem, you can sign as I received the dismissal letter and the settlement without it, closing the possibility of challenging it.
The absence of signature on your part of the documentation of the dismissal does not change the effect of the communication since, the company will provide witnesses to confirm the delivery of the same, leaving it reflected in the documentation of the dismissal through the signature of witnesses chosen by the employer.
In no case should you "run away" before the communication of your dismissal, no matter how much panic you get into, since the company will send a burofax to your home with the same documentation having the same effects as if it had been delivered to you.
- It is an important mention to bear in mind that sometimes, the company will introduce, along with the settlement and balance, some clauses through which, you force yourself to have no reason or amount to claim from the company after receiving the amount they offer you in liquidation. In these cases, you can also sign “non-compliant” indicating by way of receipt, the receipt of the amounts that are delivered to you. The dismissal may be classified as null by the courts in case there are prohibited causes of discrimination in the Constitution or in the law, or the dismissal would have occurred in violation of the worker's fundamental rights and public liberties. These are the so-called “shields” that are usually used against a dismissal in the following circumstances:
- Pregnant worker or worker enjoying maternity, paternity, adoption or foster care leave, or 9 months after the suspension of the contract for said causes Lactation, risk during pregnancy, risk during lactation or diseases caused by pregnancy, childbirth or lactation, reduction of working hours for child or family care, reduction of working hours for lactation, reduction of working hours for hospitalized newborn children. Request or enjoy a leave of absence for child or family care. Workers victims of gender violence for making use of their rights to the reduction or rearrangement of the working day, to geographical mobility or change of workplace, or to the suspension of the employment relationship.Discrimination of the worker or violation of their fundamental rights and public liberties established in theSection 1, Chapter 2 and Title 1 of the Spanish Constitution. Workers in the framework of a collective dismissal where there have been voidable defects in the processing of the same .
The consequences of the declaration of nullity of the dismissal is that the company will have to reinstate the worker in the same position and under the same conditions that he was in before being dismissed, paying him the processing wages accrued from the day in which fired him until the effective date of readmission to the company.
