Disciplinary and Objective Dismissal in Spain: Causes and Effects
Disciplinary Dismissal
Disciplinary dismissal is the termination of the employment contract by decision of the employer based on serious, culpable breaches by the employee. It is the most serious sanction a worker can receive, and therefore, it should usually be preceded by other warnings or minor sanctions.
Causes of Disciplinary Dismissal
- Indiscipline or disobedience: Disobedience of orders related to work.
- Repeated and unjustified misconduct or failure to attend work on time.
- Verbal or physical offenses to the employer, colleagues, or their family members.
- Transgression of contractual good faith and breach of trust in the performance of work.
- A steady, voluntary decrease in work performance.
- Habitual drunkenness or drug addiction, when it adversely affects work activity.
Formal Requirements
The employer must inform the worker of the dismissal in writing, stating in detail the facts that motivated the dismissal, the dates on which they occurred, and the date the dismissal takes effect.
Effects of Disciplinary Dismissal
If the dismissal is deemed appropriate, the employee is not entitled to any compensation and is considered legally unemployed, but cannot collect unemployment benefits until after 3 months.
If the dismissal is deemed inappropriate, the employer may, within five days of being notified of the decision, choose between:
- Reinstatement of the worker with payment of wages during the proceedings.
- Payment of the following amounts:
- An allowance of 45 days of salary per year of service, prorated by months for periods less than one year, up to a maximum of 42 monthly payments.
- An amount equal to the sum of unpaid salary from the date of dismissal until the notification of the decision declaring the inadmissibility of the dismissal.
Objective Dismissal
Objective dismissal is the termination of the employment contract by the employer based on circumstances beyond their control.
Causes of Objective Dismissal
The employer can dismiss workers for the following reasons:
- The worker’s ineptitude, known after the trial period.
- Lack of adaptation of the worker to technical modifications of the job, provided that these modifications are reasonable for the worker’s knowledge and at least two months have been granted for adaptation.
- Attrition of the job where there are underlying economic, organizational, technical, or production reasons, and the layoffs will contribute to improving the company’s economic or competitive situation.
- Absences from work, even justified but intermittent, that reach 20% of working days in two consecutive months or 25% in four discontinuous months within a period of 12 months, *provided that* the total workforce absenteeism in the workplace exceeds 5% during the same periods.
Formal Requirements
The dismissal must be notified to the worker in writing, stating the cause of dismissal, with a notice period of 30 days. Moreover, at that moment, the employee must be provided with an allowance of 20 days’ pay per year worked, with a maximum of 12 monthly payments. A license for 6 hours per week should be granted during the notice period, so the employee can look for another job.
Effects of Objective Dismissal
Failure to comply with formal dismissal requirements will render it void, except in the case of failure to comply with the notice period, which can be replaced by an allowance equivalent to the days of notice that were not given.