In labor law we can say that there are two types of dismissals: disciplinary dismissal and objective dismissal (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.
In today's post we are going to learn a little more in detail about the ins and outs of objective dismissal and in which situations we should apply it.
Extinction of the contract for objective reasons
He article 52 of the Workers' Statute (ET) differentiates up to three cases in which we can use objective dismissal:
- Due to sudden ineptitude known after his incorporation. There are several assumptions within this type (1) physical or mental incapacity, (2) incapacity due to loss of necessary professional requirements, or (3) sudden incapacity detected in the medical examination; This last case is the most common and is used to dismiss those people who are declared by the prevention service as “Unsuitable” for their job and, therefore, cannot continue providing services for the company.
- Due to the worker's lack of adaptation to the technical modifications carried out in his or her workplace. This type of dismissal is not usually common; in any case, before proceeding with the dismissal, the worker must have received training regarding the technical modifications that are intended to be implemented in the production cycle.
- For ETOP causes -Economic, Technical, Organizational and Productive-: this type is the most used within objective dismissals. We are not going to go into the details of this type, as we will dedicate a post exclusively for it later.
Form and effects of extinction due to objective causes
The Workers' Statute requires that they meet the following requirements for the objective dismissal to be appropriate:
- Written communication to the worker expressing the reason for the dismissal in a clear and detailed manner.
- Make compensation of 20 days per year of service (maximum twelve monthly payments) available to the worker at the time of termination. The mathematical formula is:
- Daily salary x seniority (in months)
- The CGPJ has at its disposal a compensation calculator widely used by all workers, and updated according to the judicial interpretations made in this regard.
Failure to comply with sections a and b will automatically result in the dismissal being unfair.
- Granting a notice period of 15 days; If the 15-day notice is not fully respected, the compensation must not be paid in its entirety, but in proportion to the days of notice that have not been respected. For example, if the dismissal is communicated 8 days in advance (instead of the 15 days legally provided), the company must pay 7 days' salary in the settlement as "lack of notice."
The company cannot force workers to take their vacations during the 15 days' notice, since both figures have different natures:
- The vacation period is to disconnect and rest from work, and said period must be agreed upon by mutual agreement between the employer and the worker.
- On the other hand, the notice period is so that the worker can look for a new job: for this reason, paid leave of 6 hours per week is available to them.
In the event of an overlap between both periods, the worker could file a claim for quantity, claiming the amount of one or the other period.
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