What to do in the event of an unfair dismissal?
What is it?
An unfair dismissal is a unilateral decision by the employer by which the company decides to dismiss one of its employees. In order for it to be classified as unfair, the dismissal must be challenged before the social order.
In what cases do we understand that it is an unfair dismissal?
- The employer does not accredit, in the dismissal letter, the causes of this.
- The employer does not comply with the formalities required by law or by collective agreements.
- In the case of a dismissal of a worker affiliated to a union, the employer omits the process of hearing the union delegates or the process of the contradictory file in the case of dismissal of a worker representative.
If the dismissal is considered unfair, what will happen next?
If the dismissal is declared unfair, the sentence will condemn the company to choose within five days from the notification of this to:
- Reinstate the worker by paying him those salaries that he stopped receiving from the date of the dismissal considered unfair.
- Compensate the worker based on the calculation of the days of salary per year worked.
Ownership of the option rests, in general, with the Employer, although it can also correspond to the dismissed worker when he is a unit or union representative of the workers.
What advice from Martínez Caballero Abogados?
- If as an employee you have been fired and you consider that there are no justifiable reasons, at the time you have to sign the notice of dismissal, it is necessary that next to the signature appears a “non-compliant”. This will allow claims to be made in the future.
- If you do not agree with the amount that the company has offered you as severance pay, and you consider that your dismissal is unfair, put yourself in our hands. The Labor Law department will advise you on the steps to follow after dismissal.
José María Martínez Fernández
Founding Partner Martínez Caballero Abogados