When we refer to a dismissal declared fair and/or unfair, it is not a type of dismissal in itself, but a procedural declaration of the termination of the employment relationship by the unilateral will of the employer, whether or not it complies with the established legal provisions.
Types of individual dismissals: disciplinary dismissal and termination of contract for objective reasons
The Workers' Statute basically provides for two ways to terminate the employment relationship by the unilateral will of the employer with respect to the workers at an individual level: disciplinary dismissal (art. 54 ET) and termination of the contract for objective reasons (art. 52 ET).
Disciplinary dismissal is a way of terminating the employment relationship with the worker for a reason attributable to him, that is, the basis of the termination decision lies in a very serious and culpable breach of his duties and work obligations.
Termination of the contract for objective reasons, on the other hand, is configured as a way to end the employment relationship with the worker for reasons beyond their control, such as economic, technical, production, or organizational difficulties the company is experiencing, or a supervening health condition that prevents the worker from performing their duties, etc. Precisely because of the neutral nature of the reasons for objective dismissal, which are not inherent to the worker, the company, at the time of formalizing the dismissal, must provide the employee with severance pay of 20 days per year of service, with a maximum of twelve months' salary.
Different procedural declarations regarding dismissals: justification, unjustification, and nullity
Both disciplinary and objective dismissals are subject to challenge by the worker before the Social Jurisdiction, and in the judgment, the Judge will declare the dismissal fair, unfair or null.
The grounds for dismissal determine that the company has proven the reasons for the termination decision, either because they are sufficiently serious and culpable in the case of disciplinary dismissal, or because they comply with the legal provisions in the case of objective dismissal.
In contrast, the dismissal being deemed unfair would imply that the reasons for it were not justified, either because they are not sufficiently serious and culpable, or because the formal requirements of the communication have not been respected. For these cases, a legally prescribed compensation is provided, amounting to 33 days per year with a maximum of 24 months, or the reinstatement of the worker to the position he held prior to the dismissal, paying him the wages he failed to receive from the date of dismissal until the date of notification of the judgment.
Finally, it is worth mentioning dismissals declared null and void and their consequences. A dismissal is declared null and void when a company terminates an employee's employment relationship in violation of a fundamental right. For example, dismissing a member of the works council simply for being a workers' representative would infringe upon the right to freedom of association. In cases of dismissal being declared null and void, the legal consequence is the reinstatement of the employee to the position they held prior to dismissal, with payment of back wages from the date of dismissal until the date the judgment is issued.
Therefore, and in conclusion, based on the above, it is important to differentiate that the appropriateness, inappropriateness or nullity are not a type of dismissal, but a procedural declaration linked to certain legal consequences.
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A graduate in Law from the University of Barcelona, she also completed a Master's degree specializing in Labor Law and Social Security at the Barcelona Bar Association. She began her professional career as an intern while studying and later joined the Navarro Law Firm as an employment lawyer, advising companies nationwide on labor law matters and representing them before the Labor Courts, the Labor Inspectorate, in conciliation proceedings, etc. In February 2017, she joined Àmbit Jurídic i Econòmic as a professional partner after extensive experience as an employment lawyer.
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