Cotreatment Extinction of Work (II)

Posted on Nov 7, 2024 in Law & Jurisprudence

Introduction

The termination of the employment contract by the employer is called redundancy. It is a unilateral decision. There are various types of dismissal. Labor law recognizes three types:

• Disciplinary
• Objective
• Collective

Dismissal, often equated to “death”, is full of myth and mystery. It has always been the focus of debate between two positions: those who want unrestricted dismissal and those who don’t. “Is there freedom to dismiss in Spain?” Work contracts should not be confused with service contracts. Service and function differ, as the service has to be determined. There are no redundancies in construction and service contracts because they have a fixed term.

Whenever there is a false debate, it is an ideological one, with two opposing positions. One side believes that contracts can be terminated at will, which would be free dismissal. Legally, the opposite of freedom is causal or having a just cause.

Causal Dismissal Versus Free Dismissal

These are the terms in which the debate must be raised: whether or not there is a valid reason to dismiss.

The employer has the initiative to terminate a contract. If there is good cause, it will be a causal dismissal; otherwise, it will be free. In Spain, the question always arises whether the dismissal is free or causal, i.e., whether there are justifiable reasons for the employer’s decision. This debate should not be confused with the covert and real dichotomy: free dismissal or expensive dismissal. The debate is not about the freedom to dismiss but about the cost of dismissal, although these debates are intertwined.

In the European context, the first debate is usually not raised, as it is assumed there is no absolute freedom. That is why the European debate arises in the second case, the lowering of dismissal costs, without ever openly questioning who has the absolute freedom to dismiss. However, the state seeks causes under Article 54, which is highly flexible in practice.

The ongoing labor reform is stuck on this point of dismissal because the Government and Trade Unions/Employers do not agree. The worker seeks job stability, and the employer seeks flexibility in hiring and firing. Policy must reconcile these two objectives, which is complicated, and these debates are important. It is a false debate to talk about free dismissal because it already exists. The discussion should be about causal dismissal, its types, etc., but this dismissal is still free. If there is a cause, dismissal is free, but when there is insufficient cause, it costs. The debate centers on the costs of dismissal and the existence of the cause.

Disciplinary Dismissal

a) Concept, Causes, Forms, and Deadlines

Disciplinary dismissal is one whose cause is related to worker behavior. It occurs when their conduct constitutes professional misconduct. It is the employer’s response to a serious and culpable failure of the worker.

The causes are found in Article 54.

Article 54. Disciplinary Dismissal

1. The employment contract may be terminated by the employer by dismissal based on a serious and culpable breach by the worker.

2. The following shall be considered breaches of contract:

a) Repeated and unjustified absences or lack of punctuality at work.

b) Indiscipline or disobedience at work.

c) Physical or verbal abuse of the employer or people working in the enterprise or family members living with them.

d) The violation of contractual good faith and breach of trust in job performance.

e) The steady decline in voluntary work performance or agreed normal.

f) Habitual drunkenness or addiction if they negatively impact the job.

The legal causes for disciplinary dismissal are in Article 54 ET. This list has traditionally been understood as numerus clausus, but it is not. Although there is a catch-all clause, Article 50, letter (d) in Article 54.2 acts as such. This letter (d) states that the employment contract may be terminated by the employer for serious and culpable conduct.

“The violation of contractual good faith” is vague, and all behaviors that do not fit elsewhere can fit in this letter (d). All contracting must be in good faith. That is why, in practice, when an employer wants to dismiss a worker, they make a generic reference to the breakdown of good faith in the contract, letter (d) of Article 54.2 ET.

It draws on letter (d) when some of these others are incurred:

• Continued and unjustified fouls regarding attendance and punctuality. Punctuality refers to arriving late. To plead this cause, there must be a provision made by the collective agreement. The conventions indicate whether a dismissal is serious or minor and what motivated it.
• Indiscipline or disobedience at work. This is another mixed bag. The worker is subject to the employer’s guidelines, and in this sense, obedience is not a moral duty but is constitutive of the employment contract, to be within the scope of the employer’s organization and direction. Here is where failures qualify as disobedience, being indifferent whether the disobeyed orders come from the employer or lower-level management. They have the same impact in terms of disobedience, regardless of who is disobeyed (the engineer, the superintendent, the builder, etc.).
• Physical or verbal abuse of the employer or people working with them. Here, the assessment of the worker’s fault is essential. Such situations may also constitute a criminal misdemeanor or felony, and disciplinary action may be suspended even if there is a criminal penalty.
• Habitual drunkenness or drug addiction is just cause for dismissal as it adversely affects work. It also has to be a normal state. Drug use has presented tremendous problems in the Judiciary. What is cause for dismissal: sniffing, smoking a joint, having a piercing…? The issue of company image is also involved, as it can be seen as damaged.
• Harassment of the employer or coworkers was added as a cause in 2004. Harassment based on race, ethnicity, age, sexual orientation, etc.

The theme of causes always leads to casuistry. Procedurally, there is a last resort called “appeal in the unification of doctrine” in which dismissal is virtually banned because the Supreme Court believes that no two dismissals are equal: each case is different. Dismissal requires a subjective analysis of the characteristics and objectives of both the employer and the employee and the context.

More important than the causes is the status, procedure, and the effects of redundancy.

Article 55. Form and Effects of Disciplinary Dismissal

1. The dismissal must be notified in writing to the employee, including the facts that constitute the reasons and the date it takes effect.

The collective agreement may establish other procedural requirements for dismissal.

When the worker lacks a legal representative or shop steward, a contradictory file shall be opened, in which, in addition to the interested party, the remaining members of the representation to which the worker belongs, if any, will be heard.

If the worker is affiliated with a union and the employer is aware of it, the union representatives of the local union must be given a prior hearing.

2. If the dismissal was not carried out as provided in the preceding paragraph, the employer may make a new dismissal that fulfills the omitted requirements. This new dismissal, which would only take effect from its date, can only be made within twenty days, counting from the day following the first dismissal. When doing so, the employer shall make available to the employee the wages earned in the intervening days, keeping them registered with Social Security.

3. The dismissal will be classified as appropriate, inappropriate, or null and void.

4. The dismissal is considered appropriate when the alleged infringement is not disputed by the employer in its written communication. It will be inappropriate if it does not conform to the provisions of paragraph 1 of this article.

5. Dismissal shall be null and void if it is based on any of the causes of discrimination prohibited by the Constitution or by law or occurs in violation of the fundamental rights and public freedoms of workers.

Dismissal will also be null and void in the following cases:

a) The worker is during the period of suspension of the employment contract for maternity, risk during pregnancy, adoption, or foster care, as per letter (d) of paragraph 1 of Article 45 of this Act, or is notified on a date such that the notice period ends within that period.

b) Pregnant workers, from the date of commencement of pregnancy until the beginning of the period of suspension referred to in subparagraph (a), and workers who have requested one of the permits referred to in paragraphs 4 and 5 of Article 37 of this Act, or are enjoying them, or have applied for leave under paragraph 3 of Article 46 of the same.

The provisions of the foregoing subparagraphs shall apply except when, in both cases, the dismissal is based on reasons unrelated to pregnancy or the right to permits and leave mentioned.

6. Null and void dismissal will result in the immediate reinstatement of the worker with payment of unpaid wages.

7. Dismissal is revalidated from the termination of the work contract, without compensation or payment for processing.

Paragraph 5 reads as Article 7, three L 39/1999 of 5 November, to promote the reconciliation of work and family life of working people.

Article 56. Inappropriate Dismissal

1. Where the dismissal is declared unfair, the employer, within five days of notification of the judgment, may either reinstate the worker with payment of wages during the proceedings referred to in paragraph (b) of paragraph 1, or pay the following sums, which must be posted in it:

a) An allowance of forty-five days’ salary per year of service, prorated for periods shorter than one year and up to a maximum of forty-two months.

b) An amount equal to the sum of unpaid wages from the date of dismissal to the notification of the sentence that declares the invalidity or until the worker found another job if such placement was prior to that ruling and it is proven by the employer, with deductions from wages for processing.

The employer must continue to register the worker with Social Security during the period of wage referred to above.

2. In the event that the choice between reinstatement and compensation is for the employer, the amount referred to in paragraph (b) of the preceding paragraph shall be limited to wages earned from the date of dismissal to that of the previous settlement if the employer acknowledges the unfairness of the dismissal and offers compensation under paragraph (a) of the previous paragraph, by depositing in court the social worker available within forty-eight hours after the conclusion of conciliation.

3. Where the employer is not eligible for reinstatement or compensation, the former is understood to be chosen.

4. If the dismissed worker was a legal representative of workers or a union representative, the option will always correspond to them. Not exercising the option means choosing reinstatement. When the option, express or implied, is reinstatement, it will be required.

The procedure always requires a specific form. It must necessarily be in writing (Article 55). This form is in two documents:

• The termination letter, a document that must contain at least two things: the reason for dismissal and the effective date. A general reference to Article 54 is not sufficient; the facts must be specified. As for the date, there should be two dates: the date of the letter and the effective date of dismissal. If the dismissed worker is a legal representative or union member, another document is required: the contradictory record. It is required to open a file, and during its development, the works council and the union representative will be heard. If the worker is merely a union member and the employer is aware of the affiliation, the termination must be notified in advance.

Procedural agreements may raise procedural safeguards and strengthen the worker’s position by demanding other requirements.

Under the procedure, there is the worker’s reaction. The letter is a recepticia letter. As dismissal is necessarily formal, proof is required that the dismissed employee has received the notification. Thus, the letters usually have a “received and approved” section below. If the employee does not want to pick up the letter, the employer goes to two witnesses to prove the employee’s refusal to collect the letter but acknowledges awareness of the dismissal.

Against dismissal, the employee has legal action, an action for dismissal, within 20 working days after the effective date of the dismissal, although they can react immediately after receiving the letter of dismissal. Once the dismissal is appealed, we face the problem of its classification. First, it passes through an attempt at arbitration through the ballot presented to the SMAC (administrative process). If there is no administrative settlement, the worker has to file a lawsuit in court, and this qualifies the dismissal as appropriate, inappropriate, or null and void.

• APPROPRIATE DISMISSAL: When a just cause is proven and is sufficient. If the sentence is appropriate, the only thing that happens is that the termination of the employment contract is considered valid, with effect from the date stated in the letter of dismissal and not the sentence. The employment contract is terminated since the worker was fired, and the sentence just confirms that it is correct, so there is no compensation or wages during the proceedings. On the procedural level, appeals can be filed against the first sentence.
• NULL AND VOID DISMISSAL: Legally, null and void dismissal has had ups and downs. Today, it is tantamount to the dismissal letter never having been issued. It requires the employer to reinstate the dismissed worker in their job under the same conditions and also pay the wages due from the date of dismissal until reinstatement. This happens when the judge appreciates that the dismissal is not for the stated reason but for another underlying reason, such as:
• Maternity or related to it. Dismissal during maternity leave, adoption, etc., is null and void. When the employee can prove that the dismissal is due to one of these causes, the dismissal may be declared null and void. There is a problem with the employer’s knowledge or ignorance of the worker’s pregnancy. If it is proven that the reason for the dismissal is the worker’s maternity absences, the dismissal of pregnant women from early pregnancy will also be declared null and void. Nullity is now appreciated by judges in the context of redundancies related to working women’s situations related to motherhood, being quite a broad case mix.
• Dismissal will also be null and void if it violates a fundamental right or public liberty.

The consequences of revoking the dismissal are immediate reinstatement and the same conditions as before the dismissal, as well as the payment of wages earned.

• INAPPROPRIATE DISMISSAL: This is the most common situation. A large proportion of dismissal cases start this way. The dismissal will be unfair if the employer does not meet due process requirements. The dismissal will also be inappropriate when the legal grounds alleged by the employer in the dismissal letter are not proven or are not sufficiently important.

The consequences: within five days after the sentence, the employer must choose between reinstating the employee or paying compensation as established in Article 56 ET. If the employer does not make an express choice, it is understood that they opt for reinstatement under the same conditions as before the dismissal.

If the employer chooses not to reinstate, they must pay two things:

• Wages during the proceedings.
• Compensation for unfair dismissal, calculated as 45 days’ salary for every year worked at the company.

The compensation is capped at 42 months.

Under Spanish law, it has become cheaper in two ways:

• Decreasing the amount of damages when the cause is objective in construction recruitment contracts.
• Since 2002, a cheaper method whereby if the employer recognizes the impropriety before the administrative conciliation, they avoid paying wages during the proceedings. The employer recognizes the impropriety in the letter and deposits the compensation amount in a court deposit account within 48 hours. Failure to do so within 48 hours means that wages during the proceedings begin to accrue until the deposit is paid, provided that the conciliation takes place in the SMAC.

Dismissal for Objective Reasons

a) Concept, Causes, Forms, and Deadlines

The category of dismissal always refers to the origin of the decision and is always a termination of the employment contract by the employer. There are three categories or classes to remember:

• Disciplinary
• Objective
• Collective

All three have the same source, which is the will of the employer to reduce staff and therefore reduce costs.

The ultimate cause is the will of the employer. According to the etiology of the causes and the procedures, it is necessary to differentiate objective dismissal from disciplinary and collective dismissal. Although objective and collective dismissal agree on almost everything except the volume of those affected.

Objective dismissal differs from disciplinary dismissal in that it has nothing to do with the worker’s conduct, since disciplinary dismissal is always related to conduct or personal behavior and serious breaches.

Objective dismissal affects workers individually and not collectively and does not have to do with attitude and cannot be directly linked to the worker’s behavior.

This peculiarity of objective dismissal is found in the list of grounds for termination of the employment contract in Article 49 ET, which lists possible scenarios for the cessation of the employment contract, including letter (l): “Legally admissible objective causes.”

Otherwise, Article 49, which refers to the right to work, uses the term “dismissal” for termination due to misconduct when, in fact, “dismissal” always refers to disciplinary dismissal instead of objective dismissal. Objective dismissal should be understood as “bad luck” or “it has touched me” and falls outside the compliant behavior of the worker.

This automatically means that the causes must be typed in the standard and that the objective should not allow for the subjectivity of whoever uses it.

Article 49. Extinction of Contract

1. The employment contract shall terminate:

a) By mutual agreement of the parties.

b) For the reasons set forth in the contract, unless it constitutes abuse of law by the employer.

c) On expiry of the agreed time or the completion of the work or service under contract.

Fixed-term contracts with an established maximum period, including training and apprenticeship contracts, concluded for a period less than the maximum established by law, shall be automatically extended until such time as there is express termination or the worker ceases to provide services.

Once this maximum period has expired or the work or service under contract has been performed, if there are no complaints and the work continues to be performed, the contract shall be extended automatically for an indefinite period, unless the temporary nature of the service is stated.

If the fixed-term employment contract exceeds one year, the party terminating the contract is required to notify the other party of its termination with a minimum of fifteen days’ notice.

d) Voluntary departure, with the notice stipulated in collective agreements or custom.

e) Death, serious disability, total permanent disability, or absolute disability of the worker, subject to the provisions of Article 48.2.

f) Retirement.

g) Death, retirement as provided in the corresponding Social Security, or incapacity of the employer, subject to the provisions of Article 44, or by termination of the contractor’s legal status.

In cases of death, retirement, or incapacity of the employer, the employee is entitled to payment of a sum equivalent to one month’s salary. In cases of termination of the contractor’s legal status, the procedures of Article 51 of the Act must be followed.

h) Force majeure that definitively precludes work, provided that its existence has been duly established pursuant to paragraph 12 of Article 51 of the Act.

i) Collective redundancies based on economic, technical, organizational, or production reasons, provided that it is duly authorized under the provisions of this law.

j) The worker’s resignation, based on a breach of contract by the employer.

k) Dismissal.

l) Legally admissible objective causes.

2. The employer, upon termination of the contract, must provide the worker with a draft document setting out the payment of amounts due. The employee may request the presence of a legal representative of workers at the time of signing the settlement receipt, recording on the same that it was signed in the presence of a legal representative of workers, if the worker has used this possibility. If the employer prevents the presence of the representative at the time of signing, the employee may record it on their own copy for appropriate action.

The reasons for dismissal must be considered “numerus clausus” and therefore must be verifiable.

What are the causes? They are listed in Article 52 ET. The causes have been shaped by various labor reforms, and others have been added that did not exist before. Objective dismissal is the exhaust valve or legislative mechanism to break a wall against the business association’s claim to lower the cost of dismissal. To break away from the cause of worker behavior when gravity is not proven, there is a penalty or compensation system that is certainly burdensome. They managed to break another block of causes, generating so-called “objective” causes. However, if the dismissal is declared unfair, the compensation is lower.

What has happened in practice is that the operational way to terminate the employment contract or channel redundancies is no longer the classic dismissal for misconduct but rather because the employer has problems in the market for economic, technological, and productive reasons. This cause is the new catch-all when there is no clear reason, as it is the cheapest and most contested.

Article 52. Extinction of the Contract for Objective Reasons

The contract may be terminated:

a) Due to the worker’s inability or a condition that became known after their effective placement in the company. Incompetence that existed before the completion of a probationary period may be invoked after this performance.

b) Due to the worker’s lack of adaptation to technical changes in the workplace, where such changes are reasonable and at least two months have passed since the introduction of the change. The contract shall be suspended for the necessary time, up to a maximum of three months, when the company offers a retraining or further training course by the competent official body or itself, enabling the worker to adapt. During the course, the worker shall be paid the equivalent of their average wage.

c) When there is an objectively acknowledged need to eliminate jobs for some of the causes provided in Article 51.1 of this law in a number lower than that established herein. To this end, the employer may base the decision either on economic causes to contribute to overcoming an unfavorable economic situation or on technical, organizational, or production reasons to overcome difficulties that impede the efficient operation of the company, either due to its competitive position in the market or demand requirements, through better organization of resources.

Employee representatives will have priority to remain in the company in the cases referred to in this section.

d) For absences from work, even if justified but intermittent, that reach 20% of working days in two consecutive months or 25% in four discontinuous months within a period of twelve months, provided that the total workforce absenteeism rate in the workplace exceeds 5% in the same periods.

Absences due to a legal strike, the duration of an investigation, the pursuit of legal representation of workers, occupational accident, maternity, risk during pregnancy, illness caused by pregnancy, childbirth or breastfeeding, vacation leave, or illness or accident outside the workplace, where the absence has been agreed by official health services and has a duration of more than twenty consecutive days, shall not be counted as absences for the purposes of the preceding paragraph.

Letter (c) written by Article 3 RDL 8/1997 of 16 May, on urgent measures for improving the labor market and the promotion of permanent contracts, drafting confirmed by Article 3 L 63/1997 of 26 December.

Letter (d) reads as Article 7, one L 39/1999 of 5 November, to promote the reconciliation of work and family life of working people.

Next, we will analyze Article 52 ET and its various causes.

► 1st CAUSE: Worker’s inability in the workplace (Article 52.a). This inability cannot be confused with a recognized social security disability. Incompetence cannot be claimed if the worker’s weaknesses, deficiencies, or disabilities pre-existed the employment contract and were prior to hiring. It cannot be raised if the worker already had them during the probationary period. The incompetence that can cause objective dismissal can only be supervening incompetence beyond the end of the probationary period because, during the probationary period, it should have been verified. That is the purpose of the probationary period.

► 2nd CAUSE: (Article 52.b) Lack of adaptation of workers to technological changes in the workplace, provided that the changes are reasonable and after a reasonable time for adaptation. This form cannot be used arbitrarily or capriciously or without the required equipment operation performance and training.

► 3rd CAUSE: This is the most recurrent and controversial (Article 52.c) and is the generic cause for economic, technological, organizational, and productive reasons. These same causes can then be used for collective dismissal. However, in objective dismissal, the cause affects the individual, while in collective dismissal, the same causes affect a number that exceeds the threshold established in the standard. Article 52.c establishes an important legal presumption of the concurrence of the cause alleged by the employer to eliminate or avoid the laborious procedure to follow when the alleged cause affects several workers. It is a more flexible and less burdensome provision in terms of the Article 51 procedure, as it avoids the hearing process, i.e., the need to negotiate with workers. The worker’s status presumes compensation for economic, technological, or productive reasons when the measure taken by the employer is to eliminate a given job, putting the company in a better competitive position in the market. Therefore, the suppression of the job puts the company in a better position to compete in the market. This makes for a complicated judicial assessment of the employer’s claims, as it is very complicated. It is not for nothing that this is the most used channel and the one against which it is most difficult to fight.

► 4th CAUSE: (Article 52.d) Lack of attendance at work, even if justified. The literature on this cause is very long and can be summarized as follows: it is a cause that partly affects the worker’s behavior, but the important thing is the truant behavior. Absenteeism is a very complex problem and has a possible remedy or way to fight against it, which is found in Article 52.d. Eventually, with a high rate (20% in two consecutive months, 25% in four months), it happens that two rates are combined:

• Individual
• Collective

Otherwise, the use of this route is complicated by the worker’s grievances compared to other workers who are disaffected, and it is more complicated when calculating absences that can be justified, such as sick leave, the right to strike, etc., which can count towards absenteeism if it exceeds certain days. It is rarely used except in extreme cases. There is an incorporation by the law of protection (LO 1/2004) comprehensive anti-violence, incorporating the absence of violence motivated by gender into absenteeism.

► 5th CAUSE: Permanent government contracts when dealing with work or projects requiring an annual budget. In the event that there is no administration, objective dismissal can proceed.

Objective dismissal is a particular hybrid dismissal that shares characteristics with disciplinary dismissal and collective redundancies. Like disciplinary dismissal, the first formal system is the letter of dismissal, which means it has to be in writing; oral form or a phone call is not valid. It must state the alleged cause and the effective date.

The first point is that the letter of dismissal has two requirements:

• ALLEGED CAUSE: as a justification for dismissal and has to be one of those referred to in Art.51 ET
• Effective date of dismissal

You must be a document recepticio and the employer has to deal with the worker has received but has rejected recourse to witnesses.

A second procedural issue that is distinct from disciplinary dismissal is the start of a simultaneous provision of his employment compensation, damages are assessed 20 days’ salary per year of service with the apportionment of the fractions of the year and with a ceiling of 12 monthly payments.This provision means that the worker is passed by cash or by staff and delivered a check, the worker can not get it, but if you take it does not imply acceptance of the dismissal and therefore can exert the action of dismissal. The provision is not the same as the provision in the face disciplinary dismissal to free the employer from the wages of processing. The provision is part of the dismissal procedure is objective and must give a period of 30 days immediately preceding the date or effect during which time the worker or the worker’s representative has the right to use 6 hours a week find another job.

A third issue is that the peculiarity of objective dismissal is that its failure does not generate the nullity of the dismissal and does not override the decision either by the employer, which means the failure of that time is you have to pay the dismissed worker’s salary equivalent to days did not notice.

As for the procedure should be added if the cause is alleged in paragraph c), ie economic reasons … these causes need to transfer a copy of the letter of dismissal to the employee representatives.

In the procedure, procedural means, the action of dismissal is the same as the disciplinary dismissal, the reaction of the worker is or accept the dismissal and to collect compensation or challenge the employer’s decision to exercise the dismissal action that has a term of 20 working days, an action that can be exercised within 20 days after the effectiveness of the dismissal, it is also possible to exercise once reported the actual dismissal or upon receipt of the letter of dismissal.

In the dismissal letter must distinguish between two dates should not be confused:

• date of dismissal
• date of the letter

The rating is of characteristics other than disciplinary dismissal but agrees with the discipline in which there are three possible ratings:

• null
• from
• unfair

But when one or the other is not equal to the dismissal for misconduct. The dismissal will be zero rated by the judge on three assumptions:

• if the employer has not complied with the formal requirement to give the letter to cause and effect and missed the basic requirements to generate helplessness, the judge can officially declare the dismissal null. But it also is void if the cause was awkward or that violates or causes to be another underlying reason and thus proves that is not what the employer says but a violation of fundamental rights or civil liberties. The law has been incorporated into the causes for qualification as an objective dismissal null all business behaviors are a reaction to the situation of women workers maternity or situation both pregnancy and lactation or leave for child or elder care so also affects men. Everything about these causes related to child placement or adoption involve the nullity of the dismissal. This is a trouble spot by the novelty that is and is generating many practical complications for the issue of knowledge to the employer of pregnancy.The dismissal means or have no effects no equal to the dismissal of disciplinary dismissal, which is the immediate reinstatement to the job and had no effect the employer’s decision. As a declaration of invalidity should be free from defects in shape unlike the disciplinary dismissal because the disciplinary dismissal remedy the defects when the dismissal is valid, the correction of defects does not mean the previous address. If the employer stands by its decision to dispense with the worker and will have to fire him.

The second qualification is appropriate, it occurs if the employer try occurrence of the alleged cause. If the employer proves in court that the cause exists or that the dismissal has nothing to do with the personal circumstances of the worker then the dismissal is appropriate also for objective reasons can fire a pregnant woman.

Will be branded as unfair dismissal when the case was not proved or the court finds that no sufficient cause has not sufficiently important or the alleged cause. The inadmissibility involves the disciplinary consequences of wrongful dismissal, which does not occur in the appropriate disciplinary dismissal because the employee is not compensation while the objective dismissal if it is legal indemnity of 20 days per year of service with the cap of 12 months . In no disciplinary dismissal compensation if appropriate.

If dismissal is inappropriate in the target is the employer who has the right to choose between:

• readmit him because he has not made the dismissal
• or choose within 5 days to compensate sentence, the art.56 ET scheduled for disciplinary dismissal also applies if the dismissal is classed as inappropriate target.

When the business option is exercised in favor of compensation in lieu of reinstatement then the compensation for dismissal is not the goal without the generosity of disciplinary dismissal is 45 days salary per year of service with maximum of 42 months.

The objective dismissal can play either of the two benefits, 20 days if the dismissal is justified and 45 days if the dismissal is unfair.

3. Collective dismissal: concept, causes, procedure and effects.

Collective dismissal is the dismissal order to the letter c) of art.52 ET alleging cause economic, production … except that the volume of acceptance or dismissal incidence is several or many workers.

Collective dismissal has its regulation in the art.51ET to be given here is to study its extensive editorial and are complemented by the RD Regulation 43/1996 of 19 January, art.64 of the bankruptcy law.

Article 51.Despido collective

1. For purposes of this Act shall mean the extinction of redundancies employment contracts based on economic, technical, organizational or production, where in a period of ninety days, the extinction affecting at least:

a) Ten workers in firms employing fewer than a hundred workers.

b) 10 by 100 the number of workers in those companies employing between one hundred and three hundred workers.

c) Thirty workers in enterprises employing hundred or more workers.

It is understood that attend to the causes mentioned in this article when the adoption of the proposed measures will contribute, if the alleged are economic, to overcome a negative economic situation of the company or, if technical, organizational or production, to ensure the future viability of the enterprise and employment in the same through a more efficient organization of resources.

Also be understood as collective redundancy termination of labor contracts that affect the entire workforce of the company, provided that the number of workers affected more than five, when it occurs as a result of the cessation of its activity business based on the same grounds stated above.

To calculate the number of terminations of contracts as referred to in para. 1 of this article, we will also consider any other produced in the reference period initiated by the employer pursuant to other reasons not related to the individual workers concerned than those provided in para. c) paragraph 1, art. 49 of this Law, provided that their number is at least five. When successive periods of ninety days in order to circumvent the provisions contained in this Article, the company makes a contract termination under the provisions of art. 52 c) of this law in a number below the thresholds identified, and no new causes concur to justify such action, these new extinctions are treated as made in fraud, and will be declared null and void.

2. An employer who intends to make collective redundancies must request authorization for termination of employment contracts under the regulatory process for employment under this Act and its implementing regulations. The procedure begins by applying to the labor authority and the simultaneous opening of a consultation period with workers’ legal representatives.

The communication to the labor authority and legal representatives of workers must be accompanied by all documentation necessary to establish the reasons motivating the case and the justification of the measures to take, in terms that are determined.

The communication of the opening of the consultation period will be made by letter addressed by the employer to the workers’ legal representatives, a copy of which will be sent along with the request, the labor authority.

3. Receiving the request, the labor authority will check that it meets the requirements, requiring, if not, his remedy by the employer within ten days, warning that, if not done, you shall be withdrawn your request, file the papers.

The labor authority shall record the initiation of the managing body of the unemployment benefit and seek, a mandatory report of the Inspectorate of Labour and Social Security on the reasons motivating the file, and how many others are necessary to resolve justified. The reports should be evacuated in the non-extendable period of ten days and should reach the labor authority before the end of the consultation period referred to in paragraphs 2 and 4 of this Article, who incorporate them into the file once concluded that.

If during the processing of the application, the authority becomes aware that work by the employer are being taken which may render ineffective the result of any decision, it may request the employer and the competent authorities for the immediate cessation of the same.

If the termination would affect more than 50 per 100 workers, you will notice by the employer of the sale of company assets, except those that constitute normal traffic thereof, to the legal representatives of workers and also to the competent authority.

4. Consultation with legal representatives of the workers, who have the status of an interest in dealing with the case of redundancy, will last not less than thirty calendar days, or fifteen in the case of companies with fewer than fifty employees and should be about the reasons motivating the record and the ability to avoid or reduce their effects as well as on measures to mitigate its consequences for affected workers and to enable continuity and viability of the business project.

In any case, the companies of fifty or more workers, must accompany the documents initiating the file a plan that addresses the aforementioned measures.

During the consultation period, the parties shall negotiate in good faith with a view to achieving an agreement.

This agreement will require the concurrence of a majority of the members of the committee or committees, the staff representatives, if applicable, or union representatives, if any, in whole, representing most of those.

At the end of the consultation period the employer shall, to the labor authority’s outcome.

5. When the consultation period concluded with agreement between the parties, the labor authority shall issue its decision within fifteen calendar days to authorize the termination of labor relations. If after this period had not fallen express declaration, as authorized means extinct in the terms specified in the agreement.

Notwithstanding the above, if the labor authorities appreciate, or upon its own motion, the existence of fraud, misrepresentation, duress or abuse of law at the conclusion of the agreement, forward it to suspend the deadline for decision , the judicial authority, for purposes of possible declaration of nullity. Likewise act when in office or at the request of the managing body of the unemployment benefit, consider that the agreement could be aimed at obtaining undue benefits from workers affected by lack of motivating cause of the legal situation unemployment.

6. When the consultation period concluded without agreement, the labor authority shall issue a resolution estimating or denying, in whole or in part, the business application. The resolution shall be made within fifteen calendar days after notification to the labor authority of the conclusion of the consultation period “if such time had not fallen express declaration, as authorized means extinct in the terms of the application .

The resolution of the labor authority will be motivated and consistent with business applications. The authorization shall also apply if the documentation on the record may reasonably be deduced that the measures proposed by the company are necessary for the purposes referred to in paragraph 1 of this article.

7. The legal representatives of workers will have priority to remain in the company in the cases referred to in this article.

8. Workers whose contracts expire in accordance with the provisions of this Article shall be entitled to compensation of twenty days’ salary per year of service, prorated for the periods shorter than one year, with a maximum of twelve months.

9. The workers, through their representatives, may also request the opening of the dossier referred to in this article, if rationally presume that the failure to initiate the same by the employer could cause them harm are impossible or difficult to repair. In this case, the labor authority shall determine the actions and reports that are necessary for the resolution of the case, the timescales set out in this article.

10. The record of employment regulation for cases of bankruptcy, when the trustees had agreed to the non continuity of business, or other circumstances of cessation of activity of the company under court order will be processed for the sole effects of the affected workers access to the legal situation of unemployment. This is without prejudice to the provisions of paragraphs 2 and 4 of this Article, concerning consultation period and the right to compensation referred to in paragraph 8.

11. In the case of judicial sale of the entire company or part thereof shall apply only to the provisions of art. 44 of this law when it sold comprise the elements necessary and of themselves sufficient to continue the business. If, notwithstanding the concurrence of the previous case, the entrepreneur decides not to continue or suspend the activity of the above, should be based on employment regulation file opened for that purpose.

12. The existence of God, such as motivating cause of the extinction of employment contracts must be found by the labor authority, whatever the number of workers affected, dealt with prior records as provided in this section. The case was initiated by request of the company, together with the evidence it deems necessary and simultaneous communication to the legal representatives of workers, who have the status of an interest in the entire processing of the application.

The resolution of the labor authority shall be made, prior actions and reports necessary, within five days of the request, and shall take effect from the date of the event causing force majeure.

The labor authorities to find the force majeure may decide that all or a portion of the compensation due to workers affected by the termination of their contracts to be met by the Wage Guarantee Fund, subject to his right to recover the employer .

13. In matters not provided in this Article shall apply the provisions of L 30/1992 of 26 November, the legal regime of public administrations and common administrative procedures, particularly in terms of resources. All actions to be taken and notifications to be effected employees shall be conducted with the legal representatives thereof.

14. The obligations of information and documents provided in this Article shall apply regardless of whether the decision regarding collective redundancies is taken by the employer or the company to exercise control over it. Any justification of the employer on the fact that the company that made the decision has not provided the necessary information can not be taken into account for this purpose.

If the company is insolvent and will lay off many workers, is subject to bankruptcy proceedings. The powers of the judges have no authority commercial and labor.

If no contest has three characteristics:

1. Employment levels always accepted that affects more than a certain threshold depending on the number of workers who have the company.

a) Ten workers in firms employing fewer than a hundred workers.

b) 10 by 100 the number of workers in those companies employing between one hundred and three hundred workers.

c) Thirty workers in enterprises employing hundred or more workers

The important thing is that in the computation of volume of jobs which have dismissed occur within 90 consecutive days and can not circumvent the collective dismissal peculiariedad splitting redundancies not to exceed the thresholds described and no contracts have maturities temporary.

2. Peculiariedad the procedure is that it is mandatory to open a negotiation period and notification of file redundancy to the labor authority, if the consultation period ended without agreement, who decides the employment authority, but may be decided by the Positive administrative silence.

3.The third critical point of collective dismissal if the dismissal is just being used is a problem because the competition is the contentious-administrative and not work and will have to appeal the administrative approval, but certain aspects would go to social law type individual.