Disciplinary dismissal is the decision by an employer to terminate the employment relationship with the employee they have hired. For it to be considered as such, two conditions must be met: there must be a breach of contract by the employee, and this breach must be specifically serious and culpable.
As you already know, you can dismiss an employee (disciplinary dismissal) based on a serious and culpable breach of contract. But you should know what disciplinary dismissal entails, the grounds for it, the formal requirements for this type of dismissal, whether the employee is entitled to severance pay or unemployment benefits, and what to do when an employee is dismissed for disciplinary reasons… We'll explain it all.
Reasons for disciplinary dismissal
According to Article 54 of the Workers' Statute, the following will be considered contractual breaches:
- Repeated and unjustified absences or lateness to work.
- Indiscipline or disobedience at work.
- Verbal or physical offenses against the employer or the people who work in the company or the family members who live with them.
- The transgression of contractual good faith, as well as the abuse of trust in the performance of work.
- The continued and voluntary decrease in normal or agreed work performance.
- Habitual drunkenness or drug addiction negatively impacts work.
- Harassment based on racial or ethnic origin, religion or beliefs, disability, age or sexual orientation, and sexual harassment or harassment based on sex against the employer or people working in the company.
Disciplinary dismissal: justified, unjustified, or null
Disciplinary dismissal can have various legal consequences for the employee or the employer, depending on the cause and the way in which it is carried out.
To determine whether a disciplinary dismissal entitles one to compensation, we must consider the ruling it received after being challenged. Therefore, such a dismissal could be:
- Dismissal is justified. The employer has complied with the required formalities and has provided proof of the employee's breach of contract. In this case, since the employee failed to fulfill their obligations, the company can claim damages. Examples include damage to company property or damages resulting from unfair competition.
In this case, the employer's decision would be validated, and the worker would not be entitled to compensation, although they would be entitled to the corresponding unemployment benefit from Social Security, provided they meet the requirements demanded by it.
- Unfair disciplinary dismissal. Unlike the other, in this case the employer has failed to comply with some of the formal requirements or the alleged breach has not been proven.
The employee may be entitled to compensation and/or reinstatement to the same job. The compensation payable by the company will be 33 days' salary per year of service, with a maximum of 24 months' salary. For contracts signed before February 12, 2012, the calculation will be different.
- Disciplinary dismissal is null and void. It has been carried out for discriminatory reasons, violates any of the fundamental rights and public freedoms of the worker, or coincides temporally with periods related to pregnancy, maternity, paternity, adoption, or foster care.
If the dismissal is declared null and void, the worker has the right to reinstatement in the company and to the payment of back wages by the company.
The dismissal will also be null and void in the following cases:
- The one for workers during periods of suspension of the employment contract due to birth, adoption, guardianship for adoption purposes, foster care, risk during pregnancy, risk during breastfeeding referred to in article 45.1.d) and e), enjoyment of parental leave referred to in article 48 bis, or due to illnesses caused by pregnancy, childbirth or breastfeeding, or when the decision is notified on a date such that the notice period granted ends within said periods.
- The leave of pregnant workers, from the date of the start of the pregnancy until the beginning of the suspension period referred to in point a); the leave of workers who have requested one of the permits referred to in article 37, sections 3.b), 4, 5 and 6, or are enjoying them, or have requested or are enjoying the adaptations of working hours provided for in article 34.8 or the leave of absence provided for in article 46.3; and the leave of absence of female workers who are victims of gender violence for the exercise of their right to effective judicial protection or the rights recognized in this law to make their protection effective or their right to comprehensive social assistance.
- The one for workers after having returned to work at the end of the periods of suspension of the contract due to birth, adoption, guardianship for adoption purposes or foster care, referred to in article 45.1.d), provided that no more than twelve months have elapsed since the date of birth, adoption, guardianship for adoption purposes or foster care.
The provisions of the preceding cases shall apply, unless, in those cases, the dismissal is declared to be justified for reasons unrelated to pregnancy or to the exercise of the right to the aforementioned leave and absence.
Formalities of disciplinary dismissal
The disciplinary dismissal must be notified to the worker in writing, stating the facts that motivate it and the date on which it will take effect.
Attention. Collective bargaining agreements may establish other formal requirements for dismissal. It is very common, for example, to require, prior to dismissal, a formal disciplinary procedure, giving the employee the opportunity to present arguments and evidence in their defense, or to notify the employee representatives of the dismissal decision. Logically, if additional requirements are established in the collective bargaining agreement, failure to comply with these formalities may result in the dismissal being declared unfair on procedural grounds.
Notice period. Notice period is not a mandatory requirement in disciplinary dismissals. The employer may grant it to ensure the employee's right to adequately defend their employment interests. Nevertheless, the employee's breach is generally considered serious enough to justify immediate termination of the employment contract.
When the worker is a legal representative of the workers or a union delegate, a contradictory file will be opened, in which, in addition to the interested party, the other members of the representation to which he belongs, if any, will be heard.
If the worker is affiliated with a union and the employer is aware of this, the employer must give a prior hearing to the union delegates of the corresponding union section.
If the dismissal is carried out without observing the aforementioned provisions, the employer may carry out a new dismissal that complies with the requirements omitted in the previous one. This new dismissal, which will only be effective from its date, may only be carried out within twenty days, counting from the day following the first dismissal. Upon carrying out this new dismissal, the employer will make available to the employee the wages accrued during the intervening days, maintaining the employee's social security registration during that period.
Does the company have to inform representatives about sanctions imposed for very serious offenses?
Yes. Article 64.4.c) of the Workers' Statute obliges the company to inform workers' representatives about all sanctions imposed for very serious offenses. In these cases, failure to comply with the duty to inform workers' representatives may result in the company being subject to an administrative penalty, but the lack of information in no way affects the validity of the imposed sanction.
Therefore, fulfill this obligation and keep evidence (with a receipt signed by the representatives).
How do you appeal a disciplinary dismissal?
To appeal a dismissal, you must file both a conciliation request with the CMAC or SMAC and a lawsuit with the corresponding Social Court. The legal deadline is 20 business days from the date of notification of dismissal.
You can contact this professional office for any questions or clarifications you may have.
Warm regards,
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A Àmbit Assessor, SL has 40 years dedicated to the tax, comptable and labor consultancy of the Pime.
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