Disciplinary dismissal is motivated by serious and culpable behavior by the emloyee in the fulfillment of his or her work obligations.
The following behaviors may be considered breaches of contract and become a reason for disciplinary dismissal:
Repeated and unjustified absences of attendance or punctuality at work
Indiscipline or disobedience at work
Verbal or physical offenses against the employer or the people who work in the company or family members who live with them
The violation of contractual good faith, as well as the abuse of trust in the performance of work
The continued and voluntary decrease in normal or agreed work performance
Habitual drunkenness or drug addiction if it has a negative impact on work
Harassment based on racial or ethnic origin, religion or beliefs, disability, age or sexual orientation and sexual or gender-based harassment of the employer or people who work in the company
Additionally, the collective agreement also usually regulates the disciplinary regime and includes other behaviors that may be considered a labor violation.
Before the employer dismisses for disciplinary reasons, he or she is obliged to listen to the arguments that the employee has regarding the labor breaches that he or she complains about. This has been ruled by the Supreme Court by Ruling of November 18, 2024 for the Unification of Doctrine, which establishes the obligation to give the employee a prior hearing, prior to the termination of employment, so that he can defend himself against the charges of his conduct, before the termination for his employment relationship occurs.
Once the requirement for a prior hearing for the employee has been met, the employer may terminate the employment relationship by delivering to the employee a dismissal letter that includes a detailed and specific description of the facts or non-compliance that motivated the dismissal, as well as the date on which said termination will take effect. It is worth clarifying that, in this type of dismissal, it is not necessary to give advance notice to the employee.
Once the dismissal letter has been received, and while waiting to receive legal advice, we recommend the employee to write the following text in the dismissal letter under his signature: “received and not compliant.”
Starting from the business day following the dismissal, the employee will have a period of 20 business days to file a claim for dismissal in Court, if he considers that the reasons for which he has been dismissed are not real or that the employer has not complied with the formal requirements to proceed with his dismissal. However, before filing the claim, the employee must prove an attempt at prior administrative conciliation, through the timely presentation of a conciliation slip.
If an agreement is not reached in the conciliation act, the employee must file a claim before the Labor Courts, where the controversy will be resolved by holding the corresponding labor trial.
Based on the evidence that both parties present, the Judge will issue a ruling classifying the dismissal as a fair dismissal, unfair dismissal or exceptionally as a null dismissal.
If you have been fired and are looking for employment advice, at ORTIZ PALMA ABOGADOS LABORALISTAS we will design a completely personalized legal strategy to safeguard your employment interests.
