An unfair dismissal occurs when the employer decides to terminate the employment relationship without justified legal cause or by failing to comply with the legal requirements established for each type of dismissal.
It is worth clarifying that the dismissal letter will never include an automatic recognition of the inadmissibility (or should not include it, if it is well written). And the fact is that unfair dismissal is not a type of dismissal in itself, but rather it is the qualification that an objective or disciplinary dismissal receives after having been challenged.
Therefore, the employer can dismiss the employee by carrying out termination of employment by delivering a dismissal letter that contains any of the following legal causes of termination of employment:
Disciplinary dismissal, based on serious and culpable causes or behavior of the employee.
Objective dismissal, based on the existence of legal causes that affect the business (i.e. economic, technical, organizational, productive causes, lack of adaptation to the position, etc.).
Once the dismissal has become effective, if the employee considers that the reasons that have been included in the dismissal letter are not real or are not sufficiently justified, or that the employer has not complied with all the legal formalities to dismiss him, he may challenge his dismissal.
In that case, the employee has a period of 20 business days from the next business day to the effective date of the dismissal to file a claim for dismissal in the social jurisdiction (this period also includes the prerequisite of submitting an administrative conciliation ballot).
Once the oral hearing (trial) has been held, the judge will determine whether the dismissal is classified as:
Unfair. The classification of inadmissibility requested by the employee will be justified under one of the following reasons:
There are no legal causes that justify the dismissal, because the causes indicated in the dismissal letter are not true or do not have sufficient significance.
There is an absence of any formal requirement in the procedure that the employer has followed (e.g. no written communication has been delivered, etc.).
In addition to being declared by a Judge, the inadmissibility can also be recognized by the employer at any time before the trial and expressed in the administrative or judicial conciliation.
In the event that there is a recognition of unfair dismissal, the employer will decide, at his sole discretion, whether to reinstate the employee in his job and pay him the processing wages (that is, the salaries that the employee stopped receiving from the date of dismissal until the date of reinstatement), or alternatively, pay compensation for unfair dismissal. Exceptionally, only when the dismissed employee has the status of legal representative of the employees, the choice between reinstatement or receiving compensation falls on the employee.
A correct legal strategy defines success in court. At ORTIZ PALMA ABOGADOS LABORALISTAS we have a high degree of judicial success in claiming compensation for unfair dismissal of our clients.
