Disciplinary dismissal
In labor law we can say that there are two types of dismissals: disciplinary and objective (individual and collective), and both can be classified (administratively or judicially) as appropriate, inadmissible or void. Therefore, we must clearly differentiate between the type of dismissal and its qualification.
Among the sanctions that we can apply in the Social Order we find, among others: verbal reprimand, written reprimand, suspension of employment and salary, transfer of workplace, and disciplinary dismissal.
The application of one or another sanction will depend on the seriousness of the illegal act committed, and it will be the company that must adjust which sanction it will apply by exercising proportionality, since otherwise, if the matter is judicialized, the sanction will be considered unfair.
Termination of contract for disciplinary reasons
Disciplinary dismissal is the most serious expression of sanctioning power in the social order; In other words, it becomes what prison is in the criminal order. In order to apply this sanction, it is necessary that the acts committed by the worker are of sufficient gravity and guilt to apply the maximum sanction provided for in the Workers' Statute: dismissal.
Before applying disciplinary dismissal, we must do a reflection exercise and analyze whether we are correctly applying the theory of proportionality, otherwise, it will be advisable to apply a lower sanction.
Faults: minor, serious and very serious
The offenses are included in the applicable Collective Agreement, and are classified as minor, serious and very serious. You have to be careful, because the same offense in a collective agreement may be classified as minor, but another collective agreement may be considered serious: everything will depend on what the unions and employers have signed in the negotiation of said agreement.
For more information about this, you can access this link.
Limitation periods
According to article 60.2 of the Workers' Statute, minor, serious and very serious offenses expire within the following periods:
- Minor absences after 10 days.
- Serious offenses after 20 days.
- Very serious offenses after 60 days.
The period begins to run from the moment the company becomes aware of the commission of the illegal act and, in any case, 6 months after it was committed. These types of deadlines begin to run when the employer has full and complete knowledge of the sanctionable conduct.
Calculation of inadmissibility
Until now and waiting for future movements that we will comment on in another post, the calculation of inadmissibility is carried out through the following mathematical operation:
Daily salary x Seniority (months) x 2.75 days
Salary: The daily salary must be calculated, for this we will take the annual salary (fixed and variable) of the worker and divide it by 365 days.
Antiquity: We will calculate the months of seniority between the date of discharge and the date of dismissal. Periods less than one month will count as a full month.
2.75 days: Starting with the 2012 reform, all layoffs are calculated based on 33 days of salary per year of service. Therefore, if we divide 33 by 12 months, the result is 2.75.
It is important to know how to calculate compensation manually and understand well the concepts to take into account; In any case, the General Council of the Judiciary has available to anyone a labor compensation calculator that is very easy to use and updated to the jurisprudential criteria to which you can access from here.
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