I have been fired from my job, what do I do?

What to do when you are made redundant? This is undoubtedly a situation that no worker wants to live through, but that most have to face at some point in their professional life. A moment of uncertainty in which you have to keep a cool head and act in a way that protects your rights in the best possible way. Here we want to explain all about it.

What to do when you get fired?

The first step is to find out the cause of the dismissal. In most cases, the unilateral termination of the employment relationship by the company is based on the provisions of article 52 of the Workers' Statute. It sets out the economic, organisational, productive and technical reasons that may encourage objective dismissal.

However, the company can also dismiss the worker on the basis of article 54.2 of the Workers' Statute. It regulates the grounds for disciplinary dismissal. Disciplinary dismissal can only be carried out if the employee has committed a serious breach of his duties. Specifically, we are talking about:

• Repeated and long-standing indiscipline or disobedience.
• Repeated and unjustified lack of punctuality or attendance.
• Breach of contractual good faith, i.e. breach of trust.
• Physical or verbal offences against co-workers, the employer or family members of any of them.
• Drug addiction or habitual drunkenness when it negatively affects professional performance.
• Voluntary and continuous reduction of the agreed professional performance.
• Harassment of colleagues or the employer.
• Other serious misconduct as set out in the collective bargaining agreement in force.

Finally, dismissal can also be carried out by means of an ERTE (Expediente de Regulación Temporal de Empleo) or ERE (Expediente de Regulación de Empleo). The difference is that the former exempts the company from paying wages for a certain amount of time, while the latter has a definitive nature.

If I get fired, how much do I have to be paid?

In all cases, the worker is entitled to receive a severance or settlement. Any of these concepts includes all the payments that the company owes him/her. This is the case, for example, of days worked in the current month, holidays not taken and any other agreed salary or non-wage complement.

However, the amount of compensation will vary depending on the type of dismissal you are facing. Let's take a look:

• Dismissal for objective causes. The worker is entitled to receive compensation equivalent to 20 days' pay per year worked with a maximum amount equivalent to 12 monthly payments, i.e. one year's salary.
• Disciplinary dismissal. In this case, the worker is not entitled to receive any compensation from the employer. A severance payment is, as mentioned above.

Both the amount of the severance payment and the severance pay must be clearly stated in the letter of dismissal. The company is obliged to give it to the worker 15 days before the date on which it will come into effect, unless it mentions disciplinary causes.
But what happens if I have been dismissed without notice? Failure to deliver the letter of dismissal in due time and form in accordance with the provisions of the Workers' Statute is cause for unfair dismissal.

Unfair dismissal

The unfairness of a dismissal can only be determined by a judge. In this regard, our advice is that if the employee does not agree with the company's decision or with any other aspect, he/she should sign the dismissal in disagreement. This will make it easier to start the claim process, for which the services of a labour lawyer are essential.

Bear in mind that, if the worker decides to appeal the dismissal, the employer will have to provide the means of proof at its disposal to demonstrate the objective or disciplinary cause alleged for the dismissal. If the judge determines that they are not verifiable or that they are insufficient, he will have two options. The first is to reinstate the employee in his or her position and pay him or her the processing wages (those that have not been paid between dismissal and reinstatement). The other is to increase the amount of compensation.

The period of time worked between 12 February 2012 and the date of dismissal will carry a compensation of 33 days' salary per year worked with a maximum of 24 monthly payments. Likewise, the period of time worked prior to this date must be compensated with 45 days' salary per year worked. The ceiling is set at 42 monthly payments.

Are you entitled to unemployment benefits if you are made redundant?

Yes, always. It does not matter whether the dismissal is for objective or disciplinary reasons. The worker has 15 working days from the date on which the termination of the employment relationship comes into effect to apply for it. The application must be submitted to the State Public Employment Service (Servicio Público de Empleo Estatal).

Is it possible to agree on a dismissal?

No. The law considers that agreeing a dismissal between the company and the employee is fraud and therefore illegal. However, it is quite common. In most cases, both parties agree on a disciplinary dismissal. This saves the employer the severance pay and the employee can collect unemployment benefits.

Conclusions

We are sure that, thanks to this information, you will know what to do if I have been made redundant. An undesirable situation, but one that you need to know how to deal with if the time comes. Without a doubt, it is advisable not to sign anything until you have the help and advice of a labour lawyer to protect your rights.