Fair dismissal. Severance pay and right to unemployment

The figure of fair dismissal generates many doubts among workers. In fact, there are many myths surrounding it, such as that those who suffer it are not entitled to compensation or unemployment. Here we will try to refute them and shed some light on the matter.

What is fair dismissal?

Fair dismissal is defined as a type of termination of the employment relationship carried out by the employer in compliance with the established legal requirements and in accordance with the law. It is opposed to unfair dismissal and null dismissal, in which these circumstances are not present.

However, it is not the responsibility of the employer to classify a dismissal as fair, although it is the responsibility of the employer to carry it out under the protection of the law. Only a judge, by means of a final judgment, can determine whether the dismissal is justified, null and void or unjustified.

How is a fair dismissal determined?

The fact that it is a judge and not the employer himself who must determine whether the dismissal is fair or not is what generates the most confusion among workers. Specifically, the employer can only execute one of these three types of dismissal:

• Collective dismissal or ERE.
• Dismissal for objective causes.
• Disciplinary dismissal, under the protection of Article 54 of the Workers' Statute.

In any of these cases, the employer is obliged to provide the employee with a letter of termination. The letter must state the exact reasons on which the decision to terminate the employment relationship is based and the date on which the termination of the contract will take effect.

The judicial procedure to determine whether a dismissal is justified

The dismissed worker has 20 working days from the date of the communication of the dismissal to file a conciliation petition before the corresponding labor court. In doing so, he/she shows his/her disagreement with the arguments provided by the employer in support of the termination of the contract.
After this, the employer and the employee will go to a conciliation act in which they will try to reach an agreement. If this is not possible, the case will be referred to a judge, who will be in charge of determining whether the dismissal is in accordance with the law or not.

In the event that he/she finds in favor of the employee and determines that the dismissal is not in accordance with the law, he/she will be able to:

Declare it unjustified. In this case, the indemnity will be 33 days per year of service with a maximum of 24 monthly payments. The employer may choose, if he prefers, to reinstate the employee in his former position.
Declare it null and void. This is not usual, since in order to be considered null and void, it must violate the fundamental rights of the employee (for example, during maternity or breastfeeding leave). In this case, the employer will be obliged to reinstate the worker and pay him the processing wages.

But what happens if the employer is found to be in the employer's favor? That is to say, if it considers that his arguments are true and that he has carried out the process in accordance with the provisions of the law? Then, it will consider the dismissal as fair and will give it full validity.

Frequently asked questions about fair dismissal

We already know that a fair dismissal occurs after the employee challenges the termination of his or her employment contract and the judge finds in favor of the employer. However, we have not yet explained the situation in which the dismissed employee is left when this occurs. We are going to do so through a series of frequently asked questions to make it clearer.

Is fair dismissal and unemployment compatible?

The employer must provide the employee with the company certificate or, failing that, send it to the SEPE so that he/she can apply for unemployment benefits if he/she meets the legal requirements established for this purpose. This is always the case, regardless of the type of contractual termination executed (collective, objective or disciplinary). So, literally, whenever you suffer a fair dismissal you are entitled to unemployment.

What is the severance payment for fair dismissal?

At the time the dismissal becomes effective, the employer must pay the employee the corresponding severance payment. It will be composed of the days of salary of the current month, the proportional parts of the extraordinary payments due and the vacation days not enjoyed, among other aspects. It is advisable that the dismissal letter includes a breakdown of the amount.

What is the compensation for fair dismissal?

It will depend on the type of dismissal. The maximum that the employer will have to pay will be 20 days of salary per year of service with a maximum amount of 12 monthly payments, which is the amount corresponding to dismissal for objective causes. Let us take into account that, in this case, the judge has ruled in your favor, so in no case will the amount be increased beyond that figure.

It is a different matter if the judge determines that a disciplinary dismissal is appropriate. In this case, the employee will not be entitled to receive compensation in any case.

In short, this is all we need to know about fair dismissal and the causes that motivate it. We hope that, whether you are an employee or an employer, we have resolved all your doubts in this regard. In case you need personalized advice, we recommend that you consult a labor lawyer who is an expert on the subject.