When a worker is dismissed from their workplace unfairly, they may decide to challenge this decision and take their company to trial. It will be the judge who decides if it has been an unfair dismissal and what compensation the employee who has had the contract terminated should receive.
It is recommended that the worker receive
advice on the compensation for unfair dismissal
that he can receive. In addition, you must know other rights that you can claim,such as receiving unemployment benefit. In addition, specialized legal consultants will inform you about the calculation of the unfair dismissal.
It is also important to clarify what an unfair dismissal really represents, since it is a concept that everyone has ever heard, but few people really know its legal meaning.
An unfair dismissal is considered one that is carried out without any justification or that which occurs without prior communication that complies with the existing legal regulations. Likewise, it is an unfair dismissal that does not comply with article 55.1. That is, the one who does not comply with the collective agreement or is contradictory for the legal or union representatives.
The rights of the worker for unfair dismissal
If a worker considers that his dismissal is not appropriate, he can go to trial to have a declaration of inadmissibilitymade.
From this, you have the right to be readmitted or to receive compensation, as chosen by the employer.
The only situation in which the worker decides whether he prefers to return to work or receive compensation is when he is a workers’ representative or delegate.
If you decide to reinstate the worker, you must do so under the same conditions as you were before the dismissal. In addition, you must pay the processing salaries corresponding to the time not worked and the appropriate contribution to the Social Security.
If the employer decides not to have the dismissed worker anymore, he must pay him compensation,which the law establishes based on the time worked and the start date of the contract.
Whether compensation or readmission is chosen, the employer must carry out the chosen decision within 5 days of notification of the judgment. If this does not happen, it is understood that readmission is chosen.
In case of readmission under conditions different from those prior to the cessation of work, it is considered an irregular readmission and the corresponding legal process must be initiated.
In addition, it is important that the worker is aware of the possibility of facing unfair dismissal and that he takes all possible precautions to preserve his rights.
Trying to gather all possible evidence of unfair dismissal and of the link with the company and being very careful with the documents that are presented to sign by the employer is essential to avoid subsequent legal problems.
In fact, employment lawyers recommend signing only the dismissal letter and seeking appropriate advice.
Finally, it is important that the employee continues to come to his job until he receives written communication of his dismissal. In this way, the employer will not be able to argue for non-attendance at work as a reason for disciplinary dismissal.
Is there a right to unemployment with an unfair dismissal?
This is one of the most common questions asked by workers affected by a dismissal of these characteristics, and one of their main fears.
Actually, a worker who has had an unfair dismissal has the same rights as any other. That is, you will receive corresponding unemployment benefit as long as you have the appropriate contributions for it.
Of course, it will be effective once you have received compensation for unfair dismissal and are already legally unemployed as any employment relationship with the company has been cut.
How to calculate compensation for unfair dismissal?
Compensation for unfair dismissal must comply with the requirements of the Law,never by an agreement between employer and worker.
The amount of compensation for unfair dismissal in days of salary is calculated taking into account that:
- If you started working before February 12, 2012,you are entitled to 45 days per year until that date and up to a maximum of 42 monthly payments. From there, it will be charged 33 days per year and up to 24 monthly payments.
- If the start of the contract is dated after February 12, 2012,the worker is entitled to receive 33 days per year up to 24 monthly payments.
In both cases, the possibility of apportioning periods of less than one year by months is established.
In short, the resolution of an unfair dismissal – which is much more common than it seems a priori – depends in large part on the willingness of the employer to pay compensation.
In any case, it is important that the worker is aware of the need to ensure their rights and demand that the appropriate legal actions be carried out.
