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CAN I BE FIRED DURING THE STATE OF EMERGENCY?
Dismissed during the Coronavirus Crisis - can I be dismissed?
This is a question that the employment lawyers at our law firm are asked on a daily basis. The answer to whether I can be dismissed during a state of emergency is YES.
What we must look at are the possible consequences that the dismissal of a worker may have during these times.
In the regulation enacted with Royal Decree-Law 9/2020, of 27 March, it has been prevented that dismissal for objective causes derived from the economic and health crisis caused by the coronavirus will be considered justified.
The consequence will be that these dismissals will be considered unfair. In reality, it is not that it is not possible to dismiss, but rather that it has been established that the argumentation of objective cause cannot be justified, and the dismissal will be declared unfair, going from a severance payment of 20 days per year worked and a maximum of one annuity, to, when the judge considers it unfair, a severance payment of 33 days per year worked and a maximum of two annuities.
The legal provision expressly states:
"Article 2. Extraordinary measures for the protection of employment.
Force majeure and the economic, technical, organisational and production-related causes behind the measures to suspend contracts and reduce working hours provided for in Articles 22, 22 and 23 of Royal Decree-Law 8/2020, of 17 March, cannot be understood as justification for the termination of the employment contract or dismissal".
The Labour Lawyers of our Law Firm will advise you!!!
This precept came into force the same day of the publication of the Royal Decree-Law 9/2020 in the "Official Gazette of the State" (28/03/2020), maintaining its validity during the state of alarm decreed by the Royal Decree 463/2020 and its possible extensions, causing different questions:
1.- Possible retroactive effects on dismissals made before 28/03/202020
Royal Decree-Law 9/2020, of 27 March, does not establish retroactive effects. Given the lack of clarification in the regulation, we must interpret that the measures adopted do not affect workers made redundant before 28 March, despite the later date of effect.
2.- Consideration of dismissals made as unfair or null and void
The law does not specify what will happen to dismissals due to coronavirus carried out without taking into account the legal provision, whether they will be considered unfair or null and void, in our view they will be considered unfair, leaving nullity for those cases in which discriminatory effects can be appreciated.
3. Is it possible to resort to other types of dismissal?
Companies will not be able to use economic, technical, organisational or production (ETOP) arguments derived from the covid-19 coronavirus to dismiss their workers objectively -in individual cases- or via collective redundancies -for collective dismissals-. However, nothing prevents companies from resorting to other forms of dismissal such as disciplinary dismissal or dismissal for objective reasons (ineptitude, lack of adaptation of the worker, etc.). Always bearing in mind that, if considered unfair or unjustified, it will be subject to 33 days' severance pay.
For practical purposes, the published regulation is a protective measure for workers with more seniority who, if the company chooses to dismiss them, will have to pay compensation for unfair dismissal. In the case of workers with little seniority, the difference in compensation varies little and the protection is limited.
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