Employment contract’s resolution and dismissal
Sometimes companies must make the difficult decisions to dismiss some of their employees, either because these employees carry out justifiable and deserving dismissal behaviours, or because the company is facing an economic situation that prevents it from maintaining the level of employment. For this reason, there are two different types of dismissal: disciplinary dismissal and objective dismissal.
Disciplinary dismissal is that type of dismissal based on a behaviour developed by the employee and that represents a punishable offense. It is the most serious sanction that the employer can impose on the employee and there is no compensation involved in this kind of dismissal. The law foresees this disciplinary dismissal as a punishment for several behaviours that the employee may has developed:
- Repeated and unjustified lack of assistance or punctuality
- Indiscipline or disobedience
- Verbal or physical offenses against the employer or other people
- Violate contractual good faith, or breach of trust while performing the job
- Voluntary and continuous decrease in work performance
- Drug addiction or drunkenness that affect work performance
- Harassment for racial, ethnic, religious reasons, disability, gender, age or sexual orientation, both to the employer and to other people in the company
- For causes established in the Collective Agreement applicable to the activity of the Company
Now, even if the employee has carried out any of these previously described behaviours, it is essential that those can be proved and the dismissal must be done through the correct procedure. If not, the employee would have all the facilities provided in the legal system to challenge the dismissal.
The objective dismissal is the one that takes place due to the needs of the company to ensure its viability at the cost of reducing its workforce. A series of causes are established within the law (“Estatuto de los Trabajadores”) justifying this decision:
- Known or supervening ineptitude of the employee
- Employee’s lack of adaptation to technical modifications in the workplace
- Concurrence of any of the causes foreseen for collective dismissal if the termination affects to a lower number of employees than the required for the collective dismissal: economic, technical, organizational or productive causes
This type of dismissal entails a compensation of 20 days per year of service. For this type of dismissal, a series of steps must be carried out that are strictly assessed by law, since in the event of non-compliance, we would find cause enough to be able to challenge it and a Court could declare the inadmissibility of that dismissal without having to face the reasons given by the company.
For this reason, in the event you find yourself in the situation of having to reduce the workforce of a company in order to be able to save it, we recommend that before making any decision, you contact a labour lawyer from OTIS Advocaten to advise and guide you through the correct way in which they should be processed to avoid future problems.