What to do in case of unfair dismissal?

A redundancy is, of course, a situation that no worker wants to face. However, as we all know, it is more than likely that, at some point in our lives, we will have to do so. That is why knowing what rights we have is essential. In this case, we want to focus on the part of labour law that is relevant to this problem and explain everything you need to know about unfair dismissals so that you know what to do if you are affected by one.

What is an unfair dismissal?

An unfair dismissal is basically the unilateral termination of the employment contract between a company and an employee by the employer. Moreover, in order to be considered unfair dismissal, specific causes must not be accredited, such as, for example, the employee's failure to perform his or her duties, lack of attendance or continuous punctuality, etc. It can also occur when the requirements established by the collective agreements in force or by law are not met.

When does unfair dismissal occur?

Generally, there are three factors that determine whether a dismissal should be considered unfair. These are as follows:

• The employer has not complied with the required legal formalities. These can be, for example, the lack of a description of the actions justifying the dismissal, the absence of effective notification to the employee, etc.
• The employer does not prove that the facts alleged for the dismissal are sufficiently serious.
• The dismissal letter does not contain a report or contradictory dossier by the trade union delegate or the workers' representative.

What should the worker do in the event of unfair dismissal?

In this regard, there are two scenarios. The first is when the employer dismisses the employee, in theory, in a fair manner. If this happens and the employee does not agree, he/she must file a labour lawsuit in which he/she justifies why the dismissal is unfair. There will be an act of conciliation and, if no agreement is reached, a judge will be in charge of passing sentence.

On the other hand, the employer can also dismiss the employee knowing that he/she is doing so unfairly. In this case, there are two possible options in the face of the employee's claim:

• Reinstatement of the worker. The judge may oblige the employer to reinstate the worker immediately in his job and, in addition, to pay the salary that he did not receive during the months in which he was unemployed as a result of the dismissal until the date of publication of the judgment. In the event that, during this period of time, he finds another job, he must only be paid for the period of time he was unemployed.
• Compensation to the worker. The employer may refuse to reinstate the worker in his job unless he is a trade union liaison or a unitary representative of the workers, in which case the decision rests with the employee. In this case, he/she will have to pay the corresponding compensation that the judge will set according to the stipulations of the law. 

How is the amount of compensation for unfair dismissal calculated?

Calculating the amount of compensation for unfair dismissal is not simple, but it can be done with a little patience. In this regard, the first thing to analyse is the period of time you have been employed by the company. In this regard, the law contemplates an amount for the time of work prior to 12 February 2012, i.e. the publication in the BOE of the current Labour Reform, and another for the period of time after.

Having clarified this issue, it must be said that all the time contributed prior to the publication of the Labour Reform is calculated at the rate of 45 days' salary per year worked. For the time after, it is calculated at 33 days' salary per year worked.

Severance pay

In addition to the amount resulting from the severance payment for unfair dismissal, it is also necessary to add the amount of the severance pay in the event that this has not been paid at the time of termination of the contract. Specifically, it is calculated by adding the days worked in the current month to the corresponding holiday days and the percentage of extra pay that the employee must receive.

The sum of the severance pay and the compensation for unfair dismissal makes the total amount of money that the employee will have to receive in the event of unilateral termination of the contract by the employer without having fulfilled all the requirements established by law for it to be considered fair. Furthermore, in the event of reinstatement and the worker has already received his severance pay, he will not have to pay it back under any circumstances.

We at G. Elias & Muñoz Abogados hope we have been of help. We have a team of lawyers specialised in dismissal, do not hesitate to contact us.