What is a dismissal?
It is the manifest will of the employer to terminate the employment relationship, either due to a breach by the employee or for objective reasons of the company or the employee himself.
Why do we say that a dismissal is unfair? The dismissal carried out by the company must always be in accordance with the labor regulations in force, that is to say, in accordance with the provisions of the labor law:
Collective Bargaining Agreement applicable to the employment relationship, and in its absence,
Workers’ Statute
The dismissal shall be:
- Notified in writing, and depending on the type of dismissal, you will have to give at least 15 days’ notice.
- Payroll and severance payment. Working days and liquidation: vacations generated and not enjoyed, overtime, holiday bonus, night bonus. Everything that the company owes to the employee must be settled at the same time.
What happens in reality?
Verbal dismissals -> No letter. Today is your last day of work, don’t come anymore. There is no more work for you. When there is more work I will call you.
What do we do in these cases?
- Seek advice from a lawyer
- Control dismissal deadlines -> 20 working days following the effective date of dismissal.
- Investigate the reason or motive for the dismissal. It may be that the reason is not a breach, but that the company may be retaliating against the worker who was previously claiming and demanding his rights.
- Burofax: It is important to be able to send a notified burofax to the company, stating that you have been dismissed but that the company has not stated the reasons for the dismissal, and that you have 48 hours to indicate the reasons for the dismissal. If not, it will be understood that you have been dismissed and you will be able to take the appropriate legal actions in this respect.
- The company may or may not answer this burofax. But we will have this means of proof to indicate that we were dismissed and not to indicate the reasons for the dismissal.
- Regardless of whether the company responds or not, it is always necessary to keep an eye on deadlines and, even if we are negotiating, file a conciliation paper and simultaneously file a lawsuit.
Now, while it is true, I said earlier that there can be several types of layoffs:
What is the disciplinary dismissal of an employee?
It is a unilateral decision by the employer, based on a serious and culpable breach by the employee.
There is a listing in ET itself:
a) Repeated and unjustified lack of attendance or punctuality to work.
b) Indiscipline or disobedience at work.
c) Verbal or physical offenses against the employer or persons working in the company or family members living with them.
d) Breach of contractual good faith, as well as breach of trust in the performance of the work.
e) Continuous and voluntary decrease in the normal or agreed work performance.
f) Habitual drunkenness or drug addiction if they have a negative impact on the work.
g) Harassment based on racial or ethnic origin, religion or beliefs, disability, age or sexual orientation and sexual harassment or harassment based on sex against the employer or persons working in the company.
Shapes:
New! Hearing prior to the employee. Essential requirement prior to the dismissal decision. If not carried out, the dismissal will be considered unfair or null and void (depending on the case).
This obligation is not expressly contemplated in the Workers’ Statute, but it is obliged by the international regulation, which is Convention 158 of the International Labor Organization, in its article 7:
“An employee’s employment relationship shall not be terminated for reasons related to his conduct or performance before he has been given the opportunity to defend himself against the charges brought against him, unless the employer cannot reasonably be requested to grant him this opportunity.
This was established as mandatory following Supreme Court Ruling number 1250/2024, dated November 18, 2024, which declared the obligation for companies to give a hearing to employees prior to their disciplinary dismissal so that they can defend themselves against the alleged facts before the termination of their employment relationship. And this, despite the fact that nothing is said in this respect in Article 55 of the Workers’ Statute and although the case law of the last decades has been defending the contrary.
It should not be forgotten that the TE includes the obligation of a prior hearing, but only when the employee is a legal representative of the workers or a union delegate, a contradictory proceeding will be opened, in which, in addition to the interested party, the other members of the representation to which he/she belongs, if any, will be heard.
If the employee is a member of a trade union and the employer is aware of this, it must give a prior hearing to the union delegates of the trade union section corresponding to said union.
Following this ruling, the following questions arise:
Do companies know how this pre-hearing will be carried out in practice?
What is the consequence of the omission of the prior hearing in terms of judicial qualification of the dismissal?
What is the period of time that the company must grant the employee in this preliminary hearing?
within what period of time must the employee respond to this hearing?
Is it possible that the employee is not dismissed by means of this hearing procedure?
What happens if the company fails to give the employee a prior hearing?
If the prior hearing is not complied with, the disciplinary dismissal will be unfair due to lack of formal requirements.
In the event that the dismissed worker is in any of the protected situations (pregnancy, disability, among others) or there is a violation of any fundamental right or discrimination, the door is open to the nullity of the dismissal.
If, after the prior hearing, the employer proceeds to dismiss the employee, he/she must issue a written notice of dismissal, stating the reasons for the dismissal and the date on which it will take effect.
Deadlines:
From the effective date of the dismissal, we have 20 working days from the following day.
Means of proof:
In its letter, the company must state all the reasons because this will be its means of proof in order to demonstrate that there was a serious and culpable breach by the employee.
The worker may collect all valid means of evidence such as: Emails, recording of calls between the worker and the employer, videos between the worker and the employer, chat conversations, photos. In addition, witnesses who can support your position (coworkers who want to testify, customers, among others).
Sheila Quiroz Sifuentes
Expert in Labor Law
Martínez & Caballero Attorneys at Law
