Disciplinary Dismissal: Causes, Procedures, and Legal Recourse
Disciplinary Dismissal
1. Causes of Dismissal
Dismissal is the termination of the employment relationship unilaterally decided by the employer. It represents the most serious manifestation of disciplinary power, with significant consequences for the worker. The employer’s reasons must be of grave and significant nature. Causes for dismissal are regulated by collective agreements and legal provisions.
- 1.1 Absenteeism or Tardiness: To justify dismissal, absences or tardiness must be repeated and unjustified, with each case evaluated individually. Excused absences are those beyond the worker’s control, due to legal provisions or circumstances of significant moral or social value.
- 1.2 Indiscipline or Disobedience: This refers to open and conscious breaches of contractual obligations or direct orders from superiors. Employees may refuse orders only if the employer abuses power or violates their dignity.
- 1.3 Verbal or Physical Offenses: These offenses against the employer, colleagues, or their family members can be grounds for dismissal. Verbal offenses are judged within their context, while physical offenses are always considered serious.
- 1.4 Breach of Contractual Good Faith: This includes abuse of trust, violating the duty of loyalty, and other actions such as:
- Working in the same industry without employer consent and causing harm to the company.
- Abusive use of power.
- Fraudulently pursuing private benefits.
- Negligence.
- Working during a period of disability leave.
- 1.5 Decreased Performance: A continuous and voluntary decrease in work performance, especially if agreed-upon targets are not met, can be grounds for dismissal, with sanctions applied proportionally.
- 1.6 Drunkenness and Drug Addiction: These must be habitual and negatively impact job performance.
2. Form of Dismissal
Dismissal requires a written notice (letter of dismissal) specifying the reasons and dates. Other formal requirements may apply depending on collective agreements. If the employee is a legal representative or union member, specific procedures must be followed.
Letter of Dismissal
A letter of dismissal is essential. It informs the employee of the reasons, defines the scope of potential legal disputes, and sets the timeframe for filing a claim.
3. Complaint Against Dismissal
The deadline to file a complaint is 20 business days, starting the day after the employer notifies the worker.
4. Judgment and Effects
The social court will judge the dismissal and determine the following:
- 4.1 Justified Dismissal: If the employer’s reasons are proven and the dismissal procedure was correct, the contract ends on the dismissal date without severance pay.
- 4.2 Unfair Dismissal: If the reasons are not proven or the dismissal letter is flawed, the employer must reinstate the worker within five days or pay compensation (45 days/year, up to 42 months). Unpaid wages during the process must also be paid.
- 4.3 Null Dismissal: This applies to dismissals based on discriminatory grounds (Constitution), violation of fundamental rights, or specific situations like dismissal during maternity leave, pregnancy, adoption, foster care, breastfeeding, or childcare leave. Nullity requires reinstatement and payment of all unpaid wages.
Irregular Readmission
Enforcing readmission can be challenging, as the worker might be offered a different position or lower wages. In such cases, the worker can request contract termination with appropriate compensation, potentially including additional compensation up to 15 days’ salary per year of service (maximum six months).