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Dismissal Null, Dismissal Unfair and Dismissal Proceeding: Differences

In the Spanish legislation (2018) the Dismissal can be qualified in three ways: Null, Unfair and Proceeding. Each of these types responds to different causes and has different consequences.

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In this article, we will analyze the differences between unll dismissals, unfair dismissals and fair dismissals.

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A) Null dismissal

Reason

Dismissal is ruled as null when there is discrimination for any of the conducts prohibited by the Spanish Constitution (CE). It is also considered null when there is a violation of the fundamental rights and public liberties of the worker.

Along with the above, dismissal will also be null in the cases listed below:

Maternity Period

When workers are dismissed during the period of suspension of the employment contract due to maternity. Also when there is risk during pregnancy; risk during breastfeeding or diseases caused by pregnancy, childbirth or breastfeeding. Similarly, in cases of adoption, foster care or paternity. Likewise, dismissals notified on a date such that the period of notice granted ends within such periods are also included.

Pregnant workers

Any dismissal from the date of commencement of the pregnancy until the beginning of the period of suspension of the contract for the above-mentioned reasons shall be null and void.

Permit to breastfeed, premature birth, legal guardianship and serious illnesses

Dismissals where the permit to breastfeed a child under nine months old has been applied for or is being enjoyed.

Also, when permission has been requested for the birth of a premature child or when the child must be hospitalized after birth. In addition to the above, the dismissal of workers who have applied for or are enjoying the right to reduced working hours for reasons of legal guardianship is included. Also, when they have requested leave for hospitalisation or continued treatment of a child affected by cancer or any other serious illness.

Leave for child or family care

Dismissal of workers who have requested or are enjoying leave of absence for the care of children or family members.

Gender-Based Violence

Dismissals of women workers who are victims of gender violence due to the exercise of reduction rights. Also in cases where a request has been made to rearrange their working time. The same consideration is granted when a request has been made for geographical mobility, change of work centre or suspension of the employment relationship.

Adoption, guardianship, fostering or paternity

Dismissal of workers after having returned to work at the end of periods of suspension of the contract due to maternity, adoption, delegation of custody, fostering or paternity, provided that no more than nine months have passed since the date of birth, adoption, delegation of custody, or fostering of the child or minor.

Exceptionally, the above cases will not be classified as null when the dismissal is declared justified for reasons not related to the pregnancy or to the exercise of the right to the aforementioned leaves of absence.

What are the consequences of a Null Dismissal?

Immediate readmission of the worker to the position he or she was occupying and payment of the wages lost from the date of dismissal until notification of the sentence.

If the worker has found another job before the sentence is passed and the employer proves that he or she has been paid, the employer can deduct the amount from the lost wages.

If, during that period, the worker has received unemployment benefits, the Management Company will cease to pay them and will claim the social security contributions made, and the employer will pay the amounts received by the worker to the Management Company, deducting them from the wages stopped, up to the limit of the sum of those wages.

The employer must request the registration of the worker in the social security system with effect from the date of dismissal and pay contributions for that period, which shall be considered to be a contributing occupation for all purposes.

B) Unfair Dismissal

Reason

When the alleged default or non-compliance that is used to dismiss a employee is not proven, or when the formal requirements established have not been met (“disciplinary dismissal”). In the case of objetctive dismissal, when the cause is not accredited (objective causes that are legally appropiate).

Consequences and effects

In the ruling, the Social Court will establish the readmission of the worker to his job with payment of the processing salaries and the compensation to be paid in the event that the employer opts for non-readmission.

The employer may, within five days of notification of the judgment, choose between one of these two options:

  • The readmission of the worker with payment of the processing salaries. These salaries shall be equal to the sum of the salaries forfeited from the date of dismissal until the notification of the ruling declaring the dismissal to be unjustified. Also, until he had found another job if such a placement was prior to that ruling and it was proved by the employer what the employer had received, for his discount from the processing salaries.
  • An indemnity of 33 days’ salary, per year of service. Periods of less than one year must be pro-rated by month up to a maximum of twenty-four months.

The compensation option

The option for the indemnity will determine the termination of the employment contract which will be understood to have occurred on the date of the effective cessation of work.

When no option is exercised within the aforementioned five-day period, it is understood that the worker is being readmitted.

If the dismissed worker is a legal representative of the workers or a trade union delegate, the option of readmission will always correspond to the latter. Whether you opt for compensation or readmission, you will be entitled to processing wages.

The readmission option

If the employer has opted fort he readmission of the worker, he must inform the date of his return to work to the mentioned worker in writing. The emplyer has 10 days from the date of notification of the ruling to do so.

The reintegration must take place within a period of not less than three days after the receipt of the letter.

Again, as we mentioned before, the employer must also request the registration of the worker with the Social Security authorities with effect from the date of dismissal. The employer also must pay contributions for that period, which will be considered as a listed occupation for all purposes.

Processing Salaries

The employer may claim from the State the payment of the economic fee referred to in Article 56.2 of the Workers’ Statute. To do so, the ruling declaring the dismissal inadmissible must be issued more than ninety working days after the date on which the lawsuit was filed. Therefore, the employer may claim the amount exceeding such ninety working days.

In this case, the social security contributions corresponding to the salaries will be charged to the State.

Setting the amount of compensation

A distinction must be made between contracts signed before and after February 12, 2012. It was on this date that Royal Decree-Law 3/2012 came into force.

For contracts signed from 12 February 2012

The amount of compensation will be 33 days of salary per year of service. Periods of time less than one year must be pro-rated by month, up to a maximum of 24 monthly payments.

For contracts signed before the date of entry into force of Royal Decree Law 3/2012.

  • At a rate of 45 days’ salary per year of service. Periods of less than one year must be apportioned by month for the time of service prior to the effective date.
  • The resulting amount of compensation may not exceed 720 days’ salary. However, it may be higher when the calculation of the compensation for the period prior to the entry into force of the aforementioned regulations results in a greater number of days. In this case, this will be applied as the maximum compensation amount. The resulting amount may not exceed 42 monthly payments under any circumstances.

As regards employment contracts “for the promotion of indefinite contracts”, the calculation differs from the above. Thus, in contracts that are terminated for objective reasons and the termination is declared unfair, the compensation will be 33 days of salary per year of service. Periods of less than one year and up to a maximum of 24 months must be prorated by month. In the case of disciplinary dismissal, the compensation for unfair dismissal shall be calculated according to the rules laid down in the first subparagraph of this paragraph.

In the case of unfair dismissal of workers whose employment relationship is of a special nature, the amount of compensation shall be that established, where appropriate, by the rule governing that employment relationship.

C) Appropiate Dismissal

Reason

Because the causes alleged by the employer or the certainty of the objective causes are proven.

Consequences

In the event of disciplinary dismissal, termination of the employment relationship without the right to compensation or processing fees.

In the event of termination of the contract for objective reasons, the employee will receive compensation for twenty days per year of service, with a maximum of twelve monthly payments that the company gave him at the time of dismissal or that he must demand at the time the termination decision becomes effective if the employer, as a result of his economic situation, was unable to make it available to him.

Conclusion

Spanish labour law provides for different types of dismissals (Null, Unfair and Appropriate). The reasons for qualifying the dismissal are different. And every dismissal has a series of consequences.  It will be of vital importance to determine the correct qualification of the dismissal that has taken place.  For example, the compensation for unfair dismissal differs greatly from that for fair dismissal.

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