Employee Dismissal: Legal Actions and Procedures
Actions in the Event of Dismissal
An employee whose employment relationship has been terminated unilaterally by the employer and does not agree with this decision must carry out the following actions:
Conciliation Act
It is a prerequisite for any procedure for dismissal before the Social Court. This requirement involves processing requiring a prior administrative claim.
Who is affected?
- A worker who sees no grounds for the business action and receives a termination letter citing any reason.
- A worker who is discharged orally, for example, by blocking access to the workplace.
Procedure:
A complaint for conciliation must be submitted to the Unit for Mediation, Arbitration, and Conciliation in the corresponding Autonomous Community.
Deadline:
The application must be submitted within 20 working days from the time of dismissal. The submission of the request for conciliation suspends the limitation period for filing an application. It resumes the day after the attempted conciliation or within 15 days from its filing without having been held. In any case, after 30 days without the conclusion of the conciliation procedure, the procedure shall terminate, and the Labor Authority process is completed.
Outcomes:
- Agreement: The parties reach and accept an agreement.
- Lack of agreement: The employee must submit a claim before the Social Court in the days leading up to twenty.
- No-show: If the employee fails to appear without just cause, the conciliation attempt is deemed void. The judge or court may impose a fine of up to EUR 601.01 and costs if the sentence coincides with the intention of the conciliation.
Challenge:
The conciliation agreement may be contested by the parties and those who might be prejudiced by it. The action shall expire thirty days from when the agreement was adopted. For any injured party, the period starts when they become aware of it.
Execution:
What has been agreed upon in conciliation is enforceable between the parties and may be effected by the process of enforcement of judgments.
Social Court Claim
Presentation of Claims:
If conciliation is held or attempted without an agreement, the worker must submit an application to the Social Court, providing proof of the outcome of conciliation. The worker can do this alone or be advised/represented by an attorney, solicitor, social worker, or trade union.
Competent Court:
The competent court is the place of the provision of services or the defendant’s domicile, at the option of the plaintiff.
Term:
There is a twenty working days term from the time of dismissal. This is a revocation period for all purposes. If there are errors in the identification of the employer, further proceedings may be initiated against them, without starting the calculation of the limitation period until the record identifies the employer.
Content of the Claim:
- Data of the plaintiff, including the national identification number, and data from the respondent and other stakeholders.
- If the defendant lacks personality, the name of those who appear as organizers or managers, and their addresses.
- A clear and specific enumeration of the facts alleged by the employer and all those who, under substantive law, are essential to resolve the issues raised.
- Workplace, professional status, characteristics of the work performed before dismissal, salary, time and method of payment, and length of service.
- Effective date of dismissal and how it occurred.
- If the employee is or has been, in the past year, a representative of the workers.
- If the worker is affiliated with a union, whether the dismissal was made without having heard the stewards.
- Address at which all notices will be practiced.
- Date and signature.
Judgment
The Judge of the Social Court, after the conclusion of the trial, will render a judgment within five days. This judgment will qualify the dismissal as:
- Null: If there is discrimination prohibited by the Constitution or law, or a violation of fundamental rights and civil liberties of the worker.