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5
Labor and social security regulations
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4Termination of employment contracts

4.2 Classification of the dismissal

A worker dismissed on any objective or disciplinary ground may appeal the decision made by the employer before the labor courts, although a conciliation hearing must first be held between the worker and the employer to attempt to reach an agreement. This conciliation hearing is held before an administrative mediation, arbitration and conciliation body.

The dismissal will be classified in one of the three following categories: justified, unjustified or null.

CLASSIFICATIONEVENTSEFFECTS
JustifiedConforming to law.Disciplinary dismissal: Validation of the dismissal, meaning the worker is not entitled to severance pay.
Objective dismissal: Payment of 20 days’ salary per year worked, up to a limit of 12 months’ salary.
UnjustifiedNo legal ground exists for the dismissal or the procedure followed is incorrect.The employer may choose between:

  • Reinstating the worker, in which case the worker will be entitled to back pay accrued from the date of dismissal until the notification of the decision or until the worker found a new job, if this occurred prior to the decision.
  • Terminating the contract, by paying severance of 33 days’ salary per year worked, up to a maximum of 24 months’ salary (for contracts formalized before February 12, 2012, severance will be calculated at 45 days’ salary per year of service for the time worked up to such date and at 33 days’ salary per year of service for time worked thereafter, case in which the severance can be no more than 720 days of salary, unless the severance corresponding to the period prior to February 12, 2012 results in an amount of days above, case in which this shall be the maximum severance, notwithstanding the 42 monthly installments cap.

    If the dismissed worker is a workers’ representative or a union delegate, the choice will rest with the worker and back pay will accrue in all cases.
Null
  • The alleged ground is a form of discrimination.
  • It implies a violation of fundamental rights.
  • It affects pregnant workers, during the period of holding in abeyance of the contract due to maternity or paternity, risk during pregnancy, adoption, custody for adoption or fostering, reduction in working hours to care for children or relatives or for breastfeeding, and, in certain circumstances, female workers who have been the victims of gender violence. It also affects workers who have gone back to work after the period of holding in abeyance of the contract due to birth, adoption or custody for adoption or fostering has ended, provided that no more than twelve months have elapsed since the date of birth, adoption, custody for adoption or fostering of the child.
  • Collective dismissals may also be considered null and void if the company has not carried out the consultation period or provided the legally required documentation.
  • Immediate reinstatement of the worker.
  • Payment of salaries not received.