Labor Law Procedures: Dismissal, Sanctions, and More

Posted on Dec 13, 2024 in Law & Jurisprudence

Process Unit 12 Modality S

Process for Dismissal

A type of procedure established for the prosecution of workers’ claims seeking the revocation of unfair dismissal, with the respective legal consequences.

Processing procedure: It has the following characteristics with respect to the ordinary:

• The action against the dismissal must be exercised within 20 days following that to which it was produced.
• The dismissal claim must contain:
  • Workplace, age, and professional category of the fired employee, characteristics of work, wages, time, and method of payment.
  • Date and effect of the dismissal, how it happened, and the facts relied on by the employer.
  • If the employee holds or has held in the year prior to dismissal the quality of legal or union representative. If so, the defendant must file the required contradiction.
  • If the worker is affiliated with a union, in the case alleging that an unfair dismissal had not occurred after hearing stewards, if any.
• In the act of judging, the defendant employer will address first, who bears the burden of proving the veracity of the facts alleged in the letter of dismissal.
• In fact, deemed established in the Judgement shall be entered the following circumstances:
  • Date of dismissal
  • Worker’s salary
  • Workplace, professional status, seniority, special features, etc., if any.

• In the ruling of the sentence, the judge shall determine the dismissal as appropriate, inappropriate, or null:
• Dismissal from: where it is established the alleged failure by the employer.
• Unfair dismissal: when there is no ground for the alleged failure by an employer or when the requirements of Article 55 ET have been breached, an unfair dismissal brings to the employer payment of wages during the proceedings (foregone from the date of dismissal to the notification of the sentence) and also the following alternative sentence:
  • Reinstatement of the worker under the same conditions prior to dismissal.
  • Payment of compensation in the amount of 45 days’ wages per year of service up to a maximum of 42 months.

This alternative sentence has the following features:

• If the dismissal is legal or a union representative of workers, the right of option shall be responsible to it.
• The option must be exercised by writing or appearing before the JS secretariat, within five days of notification of the sentence.
• If the invalidity is due to non-compliance with any requirement of form, the employer may opt for re-admission and discharge within 7 days of notification of the sentence.
• If the employer recognized in prior conciliation that it is an unfair dismissal and provides appropriate compensation, deposit this amount in the JS available to the employee within 48 hours.
• If the sentence is under appeal, provisional execution proceeds the same only if the employer chose to readmission.
• Dismissal zero: when stating that originated in any of the grounds of discrimination under the EC and ET art.17 and 28, or is produced in violation of fundamental rights and public freedoms of workers. The null result of the dismissal is the immediate reinstatement with payment of the unpaid salary. We can cite the following course of dismissal null:
  • Suspension of the contract workers working for maternity, risk during pregnancy, adoption, or foster care.
  • Workers fired after the date the pregnancy.
  • Workers who have requested or are enjoying some of the art permits. 37.4 and 37.5 ET

Sanctions Dispute Process

A type of procedure for the prosecution of the sanctions imposed by employers in the exercise of disciplinary power.

Processing procedure: As addressed in the procedural mode of dismissal, with the following specifications:

• The employee may contest the penalty by an application within 20 days from its notification.
• If the penalty is for a serious or very serious offense for workers who possess the status of legal or union representative, the application shall provide the required records contradictory.
• In the act of the first trial involving the defendant, who bears the burden of proving the allegations against the employee.
• The sentence was delivered in one of the following ways:
  • Confirm sanction: if it is established the veracity of the allegations against the employee for which the sanction.
  • Revoke all or part of the punishment: if they have not proven facts, or if they are credited believe they deserve another qualification.
  • Nullify the sanction: if it had been imposed without observing the formal requirements.
• The ruling in this process is appealable, except in cases of penalties for serious offenses judicially appreciated.

Claim in the State of Payment of Wages

When the ruling declaring the unlawfulness of the dismissal is given a lapse of more than 60 working days from the date of filing of the complaint, the employer may require the payment of state salaries paid to an employee for processing while those exceeding 60 days. It excludes the following periods:

• The time spent on the correction to the application.
• The period that the file was suspended at the request of a party.
• The duration of the suspension date for sentencing as a result of bringing suit as LPL art.86.2

Processing Procedure: It has the following specifications:

• It is a prerequisite to have handled Claim prior to the general direction of work that had taken place at the trial dismissal within 30 working days from the finality of the sentence.
• A previous claim was a certificate from the secretary of JS witness the declaration of the termination decision and firmness.
• The general direction should resolve the claim within 30 days of its submission, rejected understood not settled within that period.
• Against the refusal, either express or implied, may the employer promote application to JS who knew about the process of dismissal. The deadline is 2 months from the rejection decision.
• Alternative to a worker is standing in the event of default by the employer from the wages of processing.
• The action was accompanied by a copy of the decision rejecting the request or the request for payment.
• Admitting the application, shall specify the date for the trial within 5 days, citing the employee, employer, and the state attorney.

Termination for Objective Reasons

Develop according to the rules of dismissal and sanctions, with the following characteristics:

• The exercise of the contested action is 20 calendar days from the day following the date of notification of termination of the contract. Since this method is subject to 30 days’ notice, the employee may anticipate the performance of the actions from the moment it is notice.
• Operative part:
  • From: When the employer proves the presence of the legal case argued.
  • Inappropriate: when it fails to establish the concurrence of the cause presented.
  • Null: for some of the following circumstances:
    • Default: written communication.
    • Not available to the worker’s compensation.
    • Discrimination of fundamental rights or civil liberties of the worker.
    • When you have made in fraud of law.
    • Termination of employment of workers, suspended in the same maternity, risk during pregnancy, adoption, foster care.
• Effects of judicial pronouncement: the appropriateness of dismissal will lead to the termination of the contract, with payment, if applicable, the economic differences that may be applicable. The illegality and invalidity carry conviction to the employer as provided for disciplinary dismissal.

The business decision of extinction collective employment contracts (ERE) for economic, technical, organizational, or production, force majeure or termination of the legal personality of the employer, will be declared invalid on its own initiative or at the request of a party, if he had not obtained prior authorization, leads the same consequences as the dismissal null

Item 13 Modality S Process (II)

Holidays

It is a mode of procedure established exclusively for the resolution of disputes concerning the date of enjoyment of holidays. It is summary proceedings and a preferential basis.

a) Standing:

• Active: for the worker or workers who seek the determination of the date of leave.
• Passive: for the employer and all who might be affected so that they can be heard and to avoid the lack of passive joint litigation necessary. This attribute is grounds for appeals to all workers who may be affected by the ruling.

b) Processing:

• Exclusion of conciliation and prior claim.
• Deadline: 1. When the date is specified in the collective agreement by agreement between employer and employee representatives, or had been set unilaterally by the former, the worker shall have a period of 20 days that had knowledge of that date. 2. When the date was not indicated the proceedings must be at least two months before the intended date of enjoyment by the employee.

c) Timely procedural: they shall submit the date of the hearing within five days following the admission of the claim. The sentence shall be given within 3 days.

d) The resolution that falls cannot be appealed.

Business Classification

It is the established modality for the resolution of these disputes arising because of the possible mismatch between the duties performed by the worker and the professional status that it has allocated.

• Processing procedure: to observe the rules of the regular process, with the following specifications:
• Works Report: demand must be accompanied by a report issued by the works council or staff representatives. The law attaches to a critical report to clarify the functions to be sold as professional play accordingly. The worker can prove that it has requested such a report had not been delivered it within 15 days.
• Report of the Labour Inspectorate: in Providence which has filed the lawsuit, the judge shall order the inspection report to obtain employment and social security, forwarding copies of the application and documents to which it accompanies. The report must be issued within 15 days.

Geographical Mobility and Modification of Work

Procedural rules for handling urgent and aimed Preferred substantiate the worker’s dissatisfaction with the business decision to transfer, or individually or collectively to change working conditions.

• Geographical Mobility: includes travel and transfers within and outside the country. Voluntary transfers are excluded.
• A substantial change in working conditions: those that alter and transform the fundamentals of employment, except those incidental modifications within the scope of the power of business management.
• Standing:
  • Active: workers affected by corporate decision.
  • Passive: the employer is, but if the object of debate is about preferences granted to certain employees, they also should be sued.

• Processing Procedure: contains the following special
• Request
• Preferred urgent and processing: The following deadlines:
  • Demand: 20 working days following notification of the business decision.
  • Act of view: in the five days following the admission of the claim.
  • Sentence: shall be given within 10 days.
• Content of the decision:
  • Geographic mobility: the movement declared justified or unjustified. In the latter case, the employee will be restored to its original workplace.
  • Changing working conditions substances: be declared justified or unjustified, in the latter case, the worker will be restored to its previous condition.
• The sentence may declare the nullity of the business decision if adopted in fraud of the law. Trying to pass off as individual mobility and collective change.
• Not to proceed with the employer to reinstate the employee in their previous working conditions, he may proceed to the implementation of the decision to the JS and the termination of the contract.
• If the process once individual mobility or modification collective processing plant for the same matter, the first process will be suspended pending resolution of the demand for collective action.
• The ruling is unappealable.

Maternity Leaves and Reduced Hours

Procedural rules for specifying and determining the time period of enjoyment in the maternity leaves and reduced hours for family reasons.

Procedure: the following special features:

• Urgent and preferential processing: deadlines are:
  • Demand: within 20 days from that on which the employer notifies the employee disagreed with the realization time and enjoy period proposed by the former.
  • Act trial: within 5 days after the admission of the claim.
  • Judgement: to be issued within three days.
• The ruling is unappealable.

Process Unit 15 Modality S (IV)

Conflict in Collective

It is an established procedural rule for the resolution of those claims affecting the general interests of a generic group of workers and that relate to the application and interpretation of a state regulation. Collective agreement or a decision business practice. Comes collected art. 151 to 160 LPL

Standing:

• Right of action: it recognizes:
  • Unions: whose scope of action is equal to or greater than the dispute in question.
  • Business Partnerships: whose scope is less than the dispute in question, provided that it is a conflict over the business field.
  • Businessman and legal representative bodies or trade union of workers, in the case of conflicts of enterprise level or lower.
• Passive Legitimacy: While LPL emphatically not about is determined by the scope of the conflict and the applicant.

The LPL Article 153 enables the most representative trade unions, business associations, and bodies representing legal or union representation, persons as parties to the process, even though they have not promoted, provided that its scope is less than the conflict (voluntary joint litigation).

Processing Procedure

It is a regular process, with the particularity of the urgency and priority of its resolution on other matters, except those relating to the protection of freedom of association and other fundamental rights.

1. Initiation pathways: It can be initiated through two distinct pathways

• By application: precise prior attempt at conciliation, in addition to general requirements, shall bear the general designation of workers and businesses affected by the conflict, and a brief reference to the legal basis of the claim brought.
• By note of the Education Authority, that will contain the same requirements stated that demand. In this case, the period of relief is extended to 10 days.

2. The month of August is good at this type of procedure.

3. Act trial: will take place within 2 days after the admission of the claim.

4. Completion of proceedings: supports two forms of completion:

• Sentence: shall be made within 3 days. It will run from the time of delivery, subject to the resource that can be brought against him. Be notified to the Education Authority when the process has been initiated at his request. Once a firm will produce the effect of “res judicata” on the individual processes pending or which may arise and relate to the same object.
• Agreement between the parties: reached at any time prior to the sentencing.

Challenging Collective Agreements

ET Article 90.5 provides that where the labor authority considers that any agreement violates the current laws or prejudiced the interests of third parties, will be directed automatically to the competent jurisdiction to proceed to remedy the alleged anomalies, after hearing the parties.

Items 161-164 LPL two tracks are set to challenge:

• In Office: carried out by the labor authority if it considers that the agreement violates the current laws or interests of third parties injured. Could occur on its own initiative or at the request of the parties involved (workers, employers, or others) when the collective agreement had not been recorded.
• Direct: carried out by persons authorized in the event that the employment authority does not reply to the request of a dispute that has previously been taken in the period of 15 days, dismissed or a collective agreement’d already been registered

Challenging Craft

To perform the labor authorities, either on its own initiative or at the request of representatives of workers or employers to sustain the illegality of the agreement, or the non-injured in their interests. That procedure can be challenged only the statutory agreements. The communication of trade acts as a demand and its contents will be different if the challenge is based on the illegality of the agreement which it is based on the harmfulness of it.

• Illegality of the convention: the content is adjusted. 1. to the realization of the legislation and it ends as may be violated by the convention. 2. brief reference to the grounds of illegality. 3. Value of the integral representations of the special negotiating the agreement in question.
• Harmfulness of the convention: the communication must contain: 1. Summary of representations of the committee members negotiating the agreement in question. 2. list of third party claimants, allegedly violated. 3. An indication of the interest of third parties who are trying to protect.

The judge warned the defects, giving relief within 10 days. Be part of this process:

• Representations members of the negotiating committee contested convention.
• The prosecution, as the defender of legality and public interest.
• The third claimant allegedly injured
• The complainants before the labor.
• The state’s attorney, if the challenge comes from the labor authorities.

Direct Challenge

It is made by legitimate themselves when the labor authority does not reply to a request of a dispute that has been previously completed within 15 days. The dismissed or a collective agreement has already been registered. That procedure can be challenged both statutory and extra statutory agreements and procedures shall be handled by the collective process. The application must contain, in addition to the general requirements, the following: 1. concretion of the law and it ends as may be violated by the agreement. 2. brief reference to the grounds of illegality. 3. Value of the representations members of the committee negotiating the agreement in question.

With regard to legitimacy:

• Locus: a challenge based on illegality: it is the courts legal or union representation of workers, unions, and business associations involved. 2. A challenge based on the harmfulness: corresponds to third parties whose interests have been seriously injured.
• Grounds for appeals: accrue to all members of the committee representatives negotiating the agreement.
• Prosecutor will always be part in these processes.

Processing Procedure

There are some common procedural peculiarities in both forms of opposition:

• Free offer of conciliation and prior claim
• NO demands are cumulative to any other
• A demand or communication which initiates an appeal accompanied by the agreement and copies for all those party to the process.
• The month of August is good at this type of procedure.
• The sentence is immediately enforceable.
• If the decision wholly or partially annuls the contested agreement must be published in the same BO that it had been inserted.

Freedom of Association and Fundamental Rights

Art. 28 EC enshrined as a fundamental right to freedom of association includes the right to form and join unions of their choice and the right of unions to form and join federations and international organizations. LPL provides for a procedure to protect the rights of freedom of association and other fundamental labor rights. Are specifically excluded from this type of litigation following injury is invoked freedom of association and other fundamental right to be substantiated in accordance with the procedural form in each case.

• Dismissal and other causes of extinction of CT
• Enjoy Holiday
• Electoral matters
• Challenges to statutes of trade unions or amendment
• CC Challenge

Standing:

• Active: shall reflect the scope of the injury that is reported:
  • Individual injury: this is the work itself, can make themselves as an adjuvant the union he belongs or any other condition which holds the most representative.
  • Collective injury: the legitimacy given to union claiming a right or legitimate interest.
• Passive: Although not expressly contained in the LPL, it is understood that the employer, employers’ association, government, or any other person, entity, or public corporation or private.
• The prosecution will always be part, as a guarantor of legality.

Processing Procedure

The following special features:

• Urgent processing and preferential
• Offer conciliation and excluding prior claim
• Content of demand: in addition to general requirements, clearly express the facts constituting the alleged violation and if fundamental rights are deemed infringed.
• Deadline for action: the protection of fundamental rights is inalienable, although the case law has indicated the possibility that in each case are set time limits for bringing proceedings. The action of protection of freedom of association is not subject to specific deadlines.
• Inapplicability of joinder.
• The judge may reject the application outright if it that is the appropriate procedure for the claim deduction.,
• Suspension of the effects of the measure.
• Act trial. It will take place in the non-extendible period of five days following the admission of the claim.
• Burden of proof: if at trial the actor provides some prima facie evidence of the alleged infringement, for the respondent to make an objective and reasonable justification of the reasons for his decision.
• Sentence: 1.
• In evaluation: from the alleged infringement is estimated order the immediate cessation of anti-union conduct, the replacement of the situation before it, and the repair of the consequence of the act. This is a triple protection:
  • Guardianship inhibitory for the harmful act.
  • Guardianship restitution of the rights violated
  • Protection in damages for any harm caused to the plaintiff.
• Rejection: if the court declares the absence of the alleged infringement, lift the precautionary measures, if any had been taken.