Compensation for unfair dismissal

In this article we are going to first study what is meant by unfair dismissal and then move on to analyze compensation for unfair dismissal after the labor reform.

What is an unfair dismissal?

Unfair dismissal is one in which the non-compliance alleged by the employer in the letter of communication of the dismissal is not proven. From this definition it can be deduced that, in order to be justified, the dismissal must be notified in writing to the worker. This document must include the facts that cause the dismissal to be unfair and the date from which it will take effect. These are the requirements established in the status of workers, which is not an impediment for other requirements to be established by collective agreement, so it is always advisable to go to it.
For example, if in a dismissal for objective reasons (LINK) the worker understands that the requirements established in the Law are not met, he must go to court to initiate a judicial procedure to declare, if appropriate, the unfair dismissal. .

Additional requirements in two specific cases

We can highlight two cases in which the Workers' Statute establishes additional requirements for the employer who wants to fire an employee:
1. If the dismissal is carried out on a legal representative of the workers or on a union representative, the possibility of explaining it must be given to both the person who is going to be dismissed and the rest of the members of the representation, if any.
2. The other case operates when the worker is affiliated to a union and the employer is aware of this situation. Here, the opportunity must be given to listen to the union representatives of the union section to which the worker belongs.
In these two cases, failure to comply with the additional requirements would be sufficient for the dismissal to be declared unfair.

Supreme Court

It has been very important ruling of the Supreme Court of September 29, 2014, in which the bases have been established to apply the compensation criteria according to the Transitional provision 5 of Royal Decree-Law 3/2012, of February 10, on urgent measures for the reform of the labor market.  In a subsequent article (LINK) we analyze with an example how compensation would be applied in the case of workers who begin their services before the entry into force of the labor reform and are dismissed after it. With this ruling, the compensation amounts received by workers in this situation are substantially expanded.
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