Employee Rights: Procedure for Disagreement with Employer Decisions
Procedure for Disagreement with Employer Decisions
If an employee disagrees with a decision made by their employer or social security, they can take the matter to the social courts within the specified deadline. The following procedure should be followed:
1. Submit an Application for Conciliation
Before going to court, it’s mandatory to submit a request for conciliation through the Mediation, Arbitration, and Conciliation Service (SMAC). This involves filling out a form with details about the company, the worker, and the reasons for the claim. When the claim is against the state, there’s no conciliation process. Instead, a prior claim is submitted to the administration within 30 days of the notification of the decision being contested.
2. Obtain the Act of Conciliation
Attendance at the conciliation meeting is mandatory for both the employer and employee. They should attempt to reach an agreement in the presence of a SMAC arbitrator, ensuring the agreement complies with the law. The following outcomes may arise from the act of conciliation:
- Agreement is reached: The employer pays the worker the agreed-upon amount or reinstates them in their job.
- No agreement is reached: The employee must file a lawsuit with the labor court.
- The employer doesn’t attend: The employee proceeds to the next step.
3. Submit Application to the Labor Court
The competent court will be determined by the workplace or residence of the defendant, at the plaintiff’s choice. The content of the application must match the facts alleged in the conciliation or prior claim. Different reasons can be introduced unless they were known at a later date. Claims for dismissal and other claims (e.g., challenges to collective agreements) cannot be combined in one action.
If the employee is represented by a lawyer, this must be indicated in the lawsuit. The judge may permit the correction of errors and request clarification on the dates and times of conciliation and trial acts.
4. Judicial Conciliation
Before the trial, the judge will attempt a new settlement between the parties. If conciliation isn’t possible, the trial proceeds immediately. Reconciliation can occur at any point before sentencing.
5. Oral Hearing
Parties can appear in person or be represented by an attorney, lawyer, social worker, or anyone with full exercise of their civil rights. Unions can also act on behalf of affiliated workers with their authorization. The Wage Guarantee Fund can appear as a party at any stage if the proceedings may result in liability for wage payments or compensation.
The applicant can ratify and expand the demand, making non-substantial changes. The defendant can respond by affirming or denying the allegations and raising any applicable exceptions. Parties can speak as often as the court deems necessary, and evidence will be presented as regulated by law. Documentary evidence will be given to the parties for review and acceptance or rejection.
After the preparatory inquiry, parties present their findings orally, identifying the reasons and requested amounts. The judge may ask questions to clarify any points not sufficiently addressed.
6. Ruling
After the trial, the labor court issues a ruling, declaring the dismissal as appropriate, inappropriate, or null:
Appropriate Dismissal:
The causes alleged by the employer or the certainty of the objective causes are proven. The employment relationship is terminated without compensation, unless the dismissal was due to objective reasons. In that case, the employee receives an allowance of 20 days’ pay per year worked, which the employer made available upon notice of redundancy.
Inappropriate Dismissal:
The causes or reasons for dismissal are not proven, or the legally established requirements were not met. The company must reinstate the employee or compensate them with 45 days’ salary per year worked, up to a maximum of 42 months. In cases of contract termination to promote permanent hiring, the allowance is 33 days’ salary per year, up to 24 months.
Null Dismissal:
It’s proven that the dismissal was discriminatory or violated fundamental rights. The worker must be reinstated, and they’ll receive compensation for lost wages during the proceedings.