Disciplinary Dismissal Claims and Legal Procedures
Item 4.1: Disciplinary Dismissal Claim (20 Working Days)
Special Requirements for Disciplinary Dismissal (Art. 104 LPL)
1. Application Details
The application must detail the circumstances of the employment relationship leading to the dismissal: workplace, professional status, work performed before dismissal, salary, length of service, payment details, and age at dismissal (Art. 104.a LPL). If seeking reinstatement, explain how potential issues can be resolved. Salary and seniority are relevant for determining compensation.
2. Termination Details
Specify the effective termination date, how it occurred, and the employer’s allegations (Art. 104.b LPL). Indicate if the employer followed Art. 55 LET (dismissal letter, reasons, effective date) and any collective agreement requirements.
3. Employee Representation
State if the employee held any legal or union representative roles in the year preceding dismissal (Art. 104.c LPL), relating to guarantees in Articles 55, 68, and 10.3 LEJ LOLS. Note union membership if dismissal is alleged as unfair due to lack of consultation with shop stewards.
4. Reinstatement or Termination
Reinstatement: Under pre-dismissal conditions, with back pay from dismissal to notification of the sentence.
Termination: Payment of processing wages and an amount as per Art. 56.2 LET (45 days of salary per year of service, up to 42 months).
Nullity: Takes effect ex tunc, reinstating the contract and removing the effects of the invalid dismissal. Article 55.6 and 113 LPT LET mandate immediate reinstatement with back pay if dismissal is declared invalid.
5. Employee’s Choice
The employee chooses between reinstatement or termination.
6. Challenging Sanctions
Single recourse process.
7. Vacation Process
Urgent nature, exemption from settlement or prior administrative complaint, short procedural time, and preferential processing.
8. Prerequisite (Art. 39.4 ET)
A worker can reclaim proper job classification for higher duties after a legally defined period. Only after company refusal and a report from the committee or staff representatives can the worker claim in court. Art. 137.1 LPL requires this report.
9. Devolution vs. Non-Devolution Resources
Devolution Resources (e.g., supplication, appeal, review): Used when a higher court reviews a lower court’s decision.
Non-Devolution Resources (e.g., replacement, supplication): Used when the same court reviews its own decision.
10. Replacement Decisions
Non-final management measures and decrees (Art. 184 LPL) are appealed to the issuing clerk, unless direct review is legally mandated. Orders and rulings are appealed to the issuing judge or court.
11. Appeal for Redress
Used to review a court decision blocking access to appeal, as long as it’s before a hierarchically superior court.
12. Supplication
Addresses the appealability of sentences by Social Courts, regardless of the case’s nature.