Unfair dismissal, what is it and how to proceed?

It is Monday morning. You get out of bed, take a shower, get into your car and drive to work. As soon as he gets in, he receives a phone call summoning him to his boss's office. As he enters, he is told that he has to leave the company.

Unfortunately, this is a more common employment situation than it seems. In legal terms, it is known as unfair dismissal. Here we are going to talk about it in depth so that you know what to do if you are faced with such a situation.

What is an unfair dismissal?

Unjustified dismissal is a dismissal whereby a company decides to terminate the contractual relationship with an employee without cause or justified reason, i.e. before the duration of the contract has expired. In fact, these types of dismissals are more common in the case of permanent contracts.

When carrying it out, the company is obliged to inform the worker. This will be done through a document called a notice of dismissal, which will state the reason for the dismissal. In case you as an employee do not agree with the reasons given by the company, you must attach a 'no conforme' right next to your signature.

Many employees, when dismissed, refuse to sign the notice thinking that it will compromise them in some way. However, as long as the expression 'not in agreement' is marked, you can sign it without fear of future complaints. These will be explained a little later.

What are the reasons why a dismissal is considered unfair?

Logically, the company will use any legal channel that allows it to demonstrate that the dismissal was for objective reasons and thus reduce or eliminate the compensation to be paid to the worker. However, current legislation indicates that any dismissal will be considered unfair if any of these circumstances are present:

• The dismissal procedure set out in Articles 51 and 55 of the Workers' Statute is not complied with: this consists, chronologically, of delivering the dismissal letter in writing and by hand to the worker, duly informing him/her of the reasons for the dismissal and the date from which it will be effective.
• The reasons alleged by the company are not real or sufficient to justify the dismissal: the employer must have reliable evidence that the worker has not fulfilled his obligations. For example, we are talking about the submission of attendance records if the employee has repeatedly absented himself from his post.
• Discriminatory reasons: any dismissal for reasons of race, age or sex, as well as those that violate fundamental rights, public liberties or special conditions for workers' representation, will be declared unfair.
• Maternity and reconciliation of work and family life: as in the previous case.

What to do when faced with a dismissal of this type?

The first thing to do is to take a cold look at the reasons specified by the company for the dismissal, obviously we recommend consulting a lawyer specialising in dismissals. On that basis, the employee can do two things:

• Accept the dismissal: even if you consider that the causes are not justifiable. In this case, you must sign the documentation provided by the company without attaching the 'no conforme' mentioned above. Afterwards, you must sign the unemployment form and submit your unemployment claim within 15 days.
• Do not accept the dismissal: you should forget to sign the unemployment form and write clearly in the written communication given by the company that you do not agree to the dismissal.

Thereafter, it will be time to take legal action in the following order and according to the following deadlines:

• Presentation of the formal allegation of dismissal before the Mediation, Arbitration and Conciliation Service: this must be done within 20 days from the date on which the dismissal becomes effective. The company and the employee will try to reach an agreement at this stage without resorting to legal action.
• Filing of the legal action: this must be done in the competent court within 20 days of the date on which an agreement is not reached in the Mediation, Arbitration and Conciliation Service.

Finally, it will be the judge who will decide, according to the evidence and testimonies presented by both parties, whether the dismissal is considered unfair or not. We would also like to remind you that the worker has 12 months to claim the amounts owed by the company regardless of the dismissal and the corresponding compensation.

The dismissal has been deemed unfair: what are the consequences?

The judge will consider the dismissal null and void, not unfair. On this basis, he/she will give the employee the right to be reinstated in his/her position or in another position of similar characteristics and with identical remuneration to the one he/she had before. In addition, the employee must retain his or her seniority. The dismissal may also be made effective in exchange for payment of the relevant compensation for unfair dismissal. In any case, he/she must reply within 5 working days of the publication of the court ruling and pay the processing wages, i.e., those that the worker would have received from the time of the communication of the dismissal until the publication of the ruling.

Compensation: calculation of unfair dismissal

Let's assume that the employer decides not to reinstate the worker and pay him/her the corresponding compensation. How is the unfair dismissal calculation carried out?

Since the publication of the 2012 labour reform, workers are entitled to an unfair dismissal indemnity of 33 days per year worked with a maximum total of 24 monthly payments.

The calculation of the unfair dismissal and the corresponding days is very simple. First of all, you have to know how much a day's salary is. To do this, you only have to look at any pay slip and divide the total amount by the number of days you have. Then multiply that amount by 33 for each year that you have worked for the company as a whole. Finally, the equivalent part is calculated according to the number of months worked in the current year.

Unfair dismissal and unemployment

You now know how to calculate the number of days' pay you can receive in compensation for unfair dismissal. In addition, you will be entitled to unemployment benefit for the following months depending on the amount of time you have paid contributions. But what happens to the unemployment benefit if the judge does not agree with you? It depends on the case:

• The dismissal is considered objective: that is, the company has alleged economic, productive or any other cause contemplated by the law and, on this basis, has carried out a dismissal for objective reasons, in which case the worker has the right to unemployment benefits and to receive compensation of 20 days per year worked.
• The dismissal is fair: by this we mean that the judge agrees with the company when he indicates that the dismissal was made for disciplinary reasons. In this case, the worker is not entitled to compensation or unemployment benefits.

Therefore, in a fair dismissal, unemployment is not a right, but in an unfair dismissal and in a dismissal for objective reasons, it is. We hope we have helped to clarify all your doubts in this regard.