It would be appropriate to dismiss a worker who unilaterally enjoys holidays without respecting the notice period and who, after having been requested, have been expressly denied by the company. Therefore, absences from work exist and are not justified by a request for holidays.
Disciplinary dismissal for unjustified absences
A worker, who provides services for a company included in the contac-centersector, has enjoyed during the last months the following permits and leaveof absence:
- voluntary leave, requested for a period of 15 months (May 19, 2015 to August 19, 2016) and was granted, although the worker voluntarily requested his re-entry and was admitted, returning to work on November 12, 2015;
- special leave of absence under article 30 of the applicable agreement, which was requested for a period of 28 days (13-2 to 12-3-2017) and was granted and enjoyed;
- leave for the care of family members, which was requested for a period of 2 months (April 9 to June 8, 2018) and was granted, although the worker voluntarily anticipated the re-entry and was admitted, returning on April 26, 2018.
Subsequently, on June 4, 2018, it requests 5 months of voluntary leave that the company denies on June 6, 2018. That same day, the worker told the company that he could not work during that period, so he requests that the absences be considered either as holidays or as unpaid leave. Despite the fact that the company, by means of a certified SMS, denies the application, the worker stops attending his job. The company dismisses him disciplinaryly for unjustified absences of assistance. The worker claims that there is no cause for disciplinary dismissal since the absences were justified by his mother’s state of health. For this reason, he files an application for dismissal before the social court, which is dismissed and, consequently, he files an appeal with the High Court of Justice.
Applying the sector’s collective agreement, the High Court of Justice declares that the only options the worker had to justifiably leave work and exclude the concurrence of cause for dismissal were: holidays, paid leave, unpaid leave and leave to care for family members. With regard to family care leave, the TSJ considers that its regulation cannot be applied since the worker had not requested it, so that there are absences in everything unrelated to this type of leave. Nor can the existence of paid leave be assessed, since it is granted in cases of accident, serious illness or hospitalization, or surgical intervention without hospitalization that requires home rest, which has not happened and with respect to unpaid leave, they are only provided for to have the necessary time to accompany dependent relatives to medical consultations, so its application is not appropriate.
With regard to holidays,the TSJ recalls that their period of enjoyment must be fixed by common agreement between company and worker and with a period of two months before the scheduled date (ET art. 38). In the case in case of prosecution, both budgets are not complied with: there has been no agreement since the worker requested a vacation and the company expressly told him that it did not grant them and the indicated notice period has not been respected, on 4-6-2018 vacations are requested for the period 7 June to 1 July. In other words, absences from work exist and are not justified by an unasswered holiday application.
Faced with this situation, the TSJ applies its doctrine on the qualification of dismissal in case of leave taken by a worker without the corresponding authorization and declares that arrogated to himself the unilateral enjoyment of the vacation is a serious and culpable breach that supposes the origin of the dismissal. In the case prosecuted there is an express refusal of the company in terms that are neither arbitrary nor unreasonable, which means that the worker was not entitled to maintain his decision to take the vacation without reaching an agreement with the company, in case of disagreement, without initiating the corresponding judicial process.
For all these reasons, considering that the absences of attendance at work are not justified, the High Court of Justice dismisses the appeal of the worker and maintains the classification of the origin of his dismissal.
Lack of attendance at work: consequences
Abandonment of the job:
- the company must prove its concurrence;
- the extinguishing will must be deduced unequivocally from the worker’s acts.
- dismissal is carried out without compensation;
- it is not a legal situation to access unemployment benefit.
- repeated absences:
- the applicable collective agreement may fix the number of days of absence which is considered serious and which therefore justifies dismissal;
- in the absence of an agreement, it must be general criteria for assessing the penalties;
- unexcused absences;
- proof of absences by the employer
- without compensation, unless declaration of inadmissibility.
- legal unemployment status
- intermittent absences;
- justified absences are also taken into account;
- reach one of the following thresholds:
- 20% of the working days in 2 consecutive months, provided that the total of absences of attendance in the previous 12 months reaches 5% of the working days;
- 25% of working days in 4 discontinuous months within a period of 12 months;
- absences must be proven by the employer.
- compensation: 20 days’ salary per year of service.
- legal unemployment status
Before initiating a dismissal procedure before the social jurisdiction, it is mandatory to attempt prior conciliation before the Arbitration and Conciliation Mediation Service. In any case, the expiry period is 20 working days, following the one in which the dismissal of the worker took place.
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