Dismissal is one of the most common situations that must be faced in employment law. It involves the termination of the employment relationship by the sole will of the company, but on the basis of a legal provision that authorises it. That is, the company unilaterally decides that the employee will no longer provide their services for it.
Now, this dismissal may take on different characteristics depending on the way in which it came about. In turn, each of them will entail different consequences; that is why it is vitally important that both the company and the employee have proper legal advice when facing this situation.
With that in mind, let us look at the different forms of dismissal in Santander.
Unfair dismissal
As we mentioned earlier, the company may dismiss the employee, but it must always allege one of the grounds established by law for doing so. Otherwise, we are dealing with an unfair dismissal, which means that the dismissal is flawed because the company did not comply with the established rules.
If this is your case, do not hesitate to contact us, since the law is quite clear in stating that these situations will give rise to a special type of compensation for the employee, which must be paid by the company.
In general terms, this compensation is 33 days’ salary for each year worked, up to a maximum of 24 months’ salary. The 45 days’ salary for each year worked are only calculated for time worked before 12 February 2012, so from that date the calculation of 33 days per year applies.
Void dismissal
As in the previous case, we are dealing with a dismissal that is flawed and which can therefore be challenged, or which will give rise to compensation. What distinguishes or classifies a dismissal as void is that the company, in addition to terminating the employment relationship, has done so for unethical reasons, which in turn affect constitutional guarantees. Such is the case of dismissing an employee for:
❶ Their sexual preference, orientation or condition.
❷ The religious beliefs they may hold.
❸ Political ideology.
❹ Being on maternity or paternity leave.
❺ Being on sick leave due to an accident at work or occupational illness.
In any event, it is necessary to have evidence that the dismissal came about for such reasons. In turn, our team of professionals is capable of gathering such evidence to bring the corresponding claim which may even result in the employee’s reinstatement to their job.
Objective dismissal in Santander
This is the type of dismissal the company resorts to when certain situations set out in the law are found to exist, which entitle that company to terminate the employment relationship. It is known as objective because, for it to occur, the employee does not need to have engaged in specific conduct; rather, a particular condition must be found in the performance of their duties, such as:
INCAPACITY
That is, when the employee does not perform their work efficiently or within the parameters of the requirements established at the start of the employment relationship. In turn, it should be remembered that this type of dismissal does give access to unemployment benefit.
FAILURE TO ADAPT
To understand this scenario, it should be noted that every company constantly adapts its production processes. Now, if the employee is unable to adapt to such new processes within a set period, the company may then dismiss them.
OTHER SPECIAL CASES
There are two further grounds for objective dismissal:
– When one of the grounds for collective dismissal occurs, but applied individually to a single employee.
– If one works for a not-for-profit organisation and there is a reduction in the funding for its operation, it may then reduce the workforce.
The former objective dismissal for justified absences was repealed in 2020 and can no longer be alleged.
Disciplinary dismissal in Santander
This dismissal comes about because of specific conduct by the employee which the law considers punishable. It has the most severe legal consequences, since it does not give rise to any compensation. Nevertheless, the employee can access unemployment benefit if they meet the required contribution conditions.
UNJUSTIFIED ABSENCE OR LATENESS
This is the typical case of the employee who does not turn up to work without a justifying reason or who is constantly late within a verifiable period.
FAILURE TO FOLLOW WORK INSTRUCTIONS
Every workplace has manuals, procedures or instructions on how to carry out work activities. So, when these are breached by an employee, the company may dismiss them, since it would even be putting the safety of the rest of the workforce at risk.
PHYSICAL AND VERBAL VIOLENCE
This is the scenario where the employee assaults, offends or mocks, whether verbally or in writing, the owner of the company or its representatives.
HARASSMENT
This refers both to sexual and workplace harassment (mobbing) by the employee towards other employees or towards their supervisors.
OTHER GROUNDS
– Breaches of good faith under the contract (confidentiality)
– Poor performance of duties.
– Attending work drunk or under the effects of other psychotropic substances.
Collective dismissal
This is the type of dismissal that affects a considerable number of employees, the percentage of which is defined by the size of the company and the number of employees it has. In any event, the company must demonstrate a series of circumstances, prominent among which are technical or economic matters, in order to proceed with the dismissal.
Likewise, the company must carry out a series of procedures before the workers’ union and before the State bodies prior to proceeding with this type of dismissal.
Whatever your dismissal, we help you
Each type of dismissal has its own rules, deadlines and consequences, and that is why it is advisable to analyse your specific case before acting. At BBM Abogados, a firm in Santander since 1990, we review your situation and tell you what you can claim and within what deadline.
- If your dismissal is not justified, the main route is unfair dismissal, where we claim the compensation you are entitled to.
- If you are part of a collective dismissal, find out how an ERE works.
- Before signing anything, let us review your dismissal letter: a defect of form can work in your favour.
Remember that you only have 20 working days to claim. Tell us about your case with no obligation.
LAWYERS WHO EMPATHISE WITH THEIR CLIENTS IN DIFFICULT TIMES
We protect our clients’ rights with the utmost dedication and diligence, placing particular emphasis on personal attention.
