Understanding Reinstatement and Termination of Employment
Reinstatement to Work and Duration of Suspension
In General: The worker is entitled to return to work once the reason for the suspension ceases. To exercise the right of reentry, the worker has a time limit. This period is not determined in general by the Act but shall be a reasonable period after the removal of the cause of the suspension (the day following the suspension sanction, or when the time allowed in the case of force majeure runs out, or after medical discharge). In some cases, the law itself pronounces, setting a one-month period (as is the case of the exercise of public office). When the suspension has been agreed upon, the terms of the pact will apply.
Exercise of Public Office or Representative Trade Union Duties: The worker may be appointed to public office, which prevents him from returning to work. He must do so within a maximum of 30 calendar days from the cessation of the charge.
Temporary Disability: The worker will need to return once he has taken the high (usually the next day).
Maternity and Paternity: Maternity leave for working women will run for sixteen uninterrupted weeks, extendable for multiple births by two weeks for each child beyond the first.
Adoption and Fostering: Similar provisions apply as in the case of maternity.
Risk During Pregnancy: In the case of suspension of the contract, this ends on the day the biological maternity contract starts or when the worker is no longer disabled to return to her former position or another compatible with her state.
2.1. Classes
2.1.1. Forzosa This type of leave is granted by the employer, either on his own or upon request of the employee, to a person who has been elected or designated by the competent authority for public office that precludes attendance at work. Naturally, as this is a case of suspension in the employment contract, during the suspension, the employee is not entitled to receive any remuneration from the company. Causes include:
- Appointment or election to public office
- Performing trade union duties or duties above the provincial level
2.1.2. Voluntary Leave Employees with at least one year in the enterprise may request unpaid leave for a period of between four months and five years, and the company is obliged to grant it, at least four years after the end of the previous leave.
2.1.3. Childcare and Family Leave Workers are entitled to a period of leave not exceeding three years to provide care for every child, whether natural, adopted, or in foster care. This period will run from the time of birth or from the dates of judicial or administrative decisions that establish the adoption or foster care. Workers are also entitled to a period of leave not exceeding one year to care for relatives to the second degree, who, due to age, accident, or illness, cannot fend for themselves and do not perform paid work.
1. Termination of Employment Contract
The termination of the employment contract is the end of the employment relationship between the company and the employee, and the contract ceases to exist permanently. The obligations for both termination of the employment contract are different from suspension since the termination is final and the suspension is temporary.
3.4. The Extinguishing of the Will of the Employer: Dismissal
The reasons why the Act allows an employer to dismiss a worker are varied and can be differentiated between: causes related to non-compliant behavior of the worker; reasons linked to the worker but not a breach of contract; and causes related to the operation, organization, and interests of the company.
3.4.1. Dismissal Disciplinary: The termination of the employment contract by the employer’s decision, alleging a serious violation and culpability of the obligations of employees. When the law speaks of breach, it relates to the obligations assumed by the employee when signing the contract, i.e., performing a type of work diligently. Justifying dismissal must be serious and culpable. The Act, with the requirement of gravity, means that the breach must be of some importance; a minor breach is not sufficient.
Reasons:
- Repeated and unjustified absences or lateness.
- Indiscipline or disobedience.
- Verbal or physical offenses against the employer, employees, or relatives living with them.
3.5.1.2. Procedure or Action of the Company:
- The time limit for carrying out the dismissal will be the sixty days following the date of knowledge of a breach by the employee, in any event within six months of the breach being committed.
- The dismissal must be notified in writing to the employee.
Once the worker’s performance is notified, the worker has two options: accept, in which case their contract is extinguished without compensation, or reject, in which case they must claim against it and sue the company within a period of 20 days.
3.5.1. Legal Causes for Dismissal:
- Ineptitude of the worker.
- Lack of adaptation of workers to technical changes in their jobs.
- Amortization of jobs.
- Absence from work.
- Missing work, even if justified, but intermittently reaching 20% of working days in two consecutive months or 25% in four months within a period of 12 months, provided that the total absence rates of staff in the workplace exceed 5% in the same periods of time.
Absences cannot be invoked as truancy due to:
- A legal strike for the duration thereof.
- Caused by workers’ legal representation.
- Work accidents.
- Maternity, risk during pregnancy, illness caused by pregnancy, childbirth, or breastfeeding.
- Licenses and holidays.
- Non-occupational illnesses or accidents, as agreed by the health service, lasting more than 20 consecutive days.
- Absences motivated by physical or psychological violence arising from gender, accredited by the Health Services or social care services as appropriate.
3.5.3. Dismissal for Technical, Organizational, Economic, Production, and Force Majeure Causes
This modality of termination is governed by Article 51 of TRLET complex and its development regulations, with respect to collective redundancies based on economic grounds (e.g., reducing accumulated losses that require closing unprofitable sections of the company); technical (e.g., mechanization of labor surplus generating activity); organizational (e.g., restructuring or closure of departments and branches); or production (e.g., production surpluses justifying a decrease in activity and a consequent reduction in employment).
The economic, technical, organizational, or productive reasons for making individual or collective dismissals are regarded as objective grounds for termination of the employment contract.
3.531. Procedure:
An employer who wants to make a collective redundancy must request permission from the labor authority to terminate contracts, for which purpose it will open a file. An application to the labor authority must be accompanied by all documentation and should also inform the employer in writing to the representatives of workers for the opening of the prescriptive consultation period and send a copy of that letter to the labor authority.
Death, Retirement, or Termination of Legal Personality of Contractor
The death of the employer determines the termination of employment contracts if their heirs do not wish to continue with the company (otherwise, there would be subrogation).
4.1.1. Dismissal Void
The dismissal will be considered void when based on any of the discriminatory grounds prohibited by the Constitution or law, or when it has violated the fundamental rights and civil liberties of the worker. This type of dismissal is made for reasons of sex, race, ideas, religion, etc. It will also be void when it restricts workers during the suspension of the contract for maternity, risk during pregnancy, breastfeeding, adoption, or foster care, or paternity. When affecting pregnant workers, workers who enjoy feeding periods, with reduced hours to care for children or relatives, and employees on leave for family care, unless the Social Court considers the merits of the dismissal.
4.1.2. Dismissal from
Dismissal is declared when the causes alleged by the employer have been proven.