Dismissal for unjustified absence from work

By now, you probably know that all grounds for dismissal are regulated by the Workers' Statute and the collective bargaining agreements in force. These determine the conditions for objective and disciplinary dismissal, while judges have the power to determine whether or not the termination of employment relationships is appropriate or inappropriate.

However, is absenteeism one of the grounds for objective or disciplinary dismissal? The answer is yes, but there are many nuances that you should be aware of. Therefore, here we would like to tell you everything you need to know about dismissal for unjustified absence from work.

First of all, what is an unjustified absence?

We must start from the premise that not all absences in terms of attendance or punctuality are the fault of the employee. In this sense, justified absences are understood to be all those that have a demonstrable motivation and that preserve one of the employee's rights.

We are talking, for example, about an occasional malaise or an accident or illness that is justified by a doctor's sick leave. Also absences due to the representation of other workers, the exercise of the right to strike or the fulfilment of a public duty of any kind.

On the other hand, when we talk about absence from work without justification, we refer to all those situations of absenteeism that are the responsibility of a guilty, voluntary and avoidable conduct on the part of the worker. For example, repeatedly oversleeping or claiming health problems without medical justification.

At present, justified absences are not considered as grounds for objective dismissal, although until not too long ago this was not the case. The last reform of the Workers' Statute eliminated any coverage for employers in this regard.

Is there such a thing as dismissal for not going to work?

You only need to look at article 54.2.a of the Workers' Statute to realise that there is. It refers to repeated and unjustified absences of attendance or punctuality as grounds for disciplinary dismissal.

As a reminder, disciplinary dismissal is the most damaging for the worker, as he/she loses the right to receive compensation for the time he/she has been working for the company. It also does not require prior notice, but it does maintain the right to receive a severance payment and to receive unemployment benefits, if the worker meets the necessary requirements.

That said, it is important to emphasise the concepts of ‘repeated’ and ‘unjustified’, which must also be due to ‘serious and culpable conduct’ on the part of the employee and involve ‘breach of his or her employment duties’. In the event that the dismissed employee contests the disciplinary dismissal in court, it will be the company's responsibility to prove that these requirements are met.

How many absences from work justify dismissal?

At this point, you may be wondering how many days you can be absent from work without justification until you are dismissed or, as an employer, to what extent you have to put up with the employee's negligent behaviour. This is a complex question, as current legislation does not specify a minimum number of unjustified absences to provide the right to disciplinary dismissal. In some collective agreements it does, but not in all cases.

The same applies to absences for punctuality, although it is true that this is less serious conduct which generally requires a higher number. In any case, case law has repeatedly determined (although not unanimously) that three unjustified absences are sufficient to trigger disciplinary dismissal.

But why? Fundamentally, because the law does state that workers may be absent from work for three consecutive days in the event of an accident or common or occupational illness. In fact, if you have ever been on sick leave, you will have noticed that you have not started to receive the temporary incapacity benefit from the Social Security or the mutual insurance company until the fourth day.

So, what happens if I miss a day of work without justification?

In all likelihood, the company will deduct the day's pay, since you did not go to work without a justifiable reason. It does not matter if the collective agreement includes the right to receive the salary for the three days prior to the sick leave referred to above. The situation would be the same as if, for example, you were to exercise your right to strike if a strike has been called by a trade union.

However, you have to be careful. Even if the absences are not consecutive, the company can take them into account and apply sanctions for absenteeism if it considers that you are acting in bad faith.

What happens if I don't go to work for more than three days?

There are workers who stop working in order to get their employer to dismiss them so that they can collect unemployment benefits, even if this means forgoing the severance pay that could be due to them because of their seniority. However, this is a double-edged sword, as the company can penalise you in other ways.

For example, by deducting these days from your pay and imposing additional days without work and pay, so that the situation becomes untenable. He or she may also be able to claim damages if his or her professional activity has suffered as a result.

In addition, even if the employer makes the dismissal, judges may determine that it is the employee who has left his or her job, which is considered a voluntary resignation or resignation. In this case, he would also lose the right to unemployment benefit, even if he was entitled to it because he had paid sufficient contributions.

That said, we believe we have made it sufficiently clear when dismissal for absence from work can and cannot take place, even though there is no completely clear legislation on the matter. If your employer has dismissed you for this reason and you disagree, please contact us. We have a large team of lawyers specialised in dismissals who will advise you, guide you and defend your rights throughout the whole process of challenging your dismissal.