Workers have the right to appeal any dismissal of which they are victims. They may exhaust different legal channels to try to prove that their company’s decision is not justified and, if they succeed, they may find themselves in the situation of having been subject to unfair dismissal. In that case, they will have the right to collect compensation if the company does not reinstate them in their job.
In order for a dismissal to be qualified as unfair, one of the following conditions must be met, in accordance with what is stated in the :
-When the breach of the worker that the company has justified to make the dismissal is not accredited.
-When it is proven that the company did not comply with the formal requirements established at the time of executing that dismissal.
-When the cause that the company has alleged to make a dismissal for objective reasons to the worker is not proven.
If the Social Court (once the worker has requested a conciliation act that has not been successful) rules that a dismissal is unfair, two possibilities are opened to the worker that do not really depend on him, since they are the decision of the company: be reinstated in your job with the payment of processing wages or pay compensation for unfair dismissal.
The firm has a period of five days to choose one of the two options, counting from the day it received the communication of the sentence. In the event that there is no response from the company or employer, it is understood that they opt for the reinstatement of the worker.
Only in one case does the decision rest with the worker and not with the company: when he or she forms part of the legal representation of the workers or is a member of the union delegation. If so, the employee who has suffered the dismissal may choose between his reinstatement in the company or the collection of compensation and the definitive termination of the employment relationship.
Amount of compensation for unfair dismissal
In the event that the worker finally receives the compensation for the unfair dismissal, he must pay attention to the date of signing his contract with the company, the one that the same company unilaterally terminated with the dismissal that was later declared unfair. Everything is due to the labor reform of 2012 that lowered the cost of dismissal for companies.
Thus, it is necessary to attend to the periods prior to February 12, 2012 (the date on which the labor reform came into force) and the periods after that date, since in the former the old compensations will apply and in the latter the current compensation, of lesser amount. As stated in the Workers’ Statute (), compensation for unfair dismissal is as follows:
-For periods prior to February 12, 2012, 45 days per year worked, prorating periods of less than one year, up to a maximum of 42 monthly payments.
-For periods from February 12, 2012, 33 days per year worked, prorating periods of less than one year, up to a maximum of 24 monthly payments.
-The maximum compensation limit that can be collected is 720 days of salary, with one exception: cases in which compensation for periods prior to February 12, 2012 is greater, in which case the limit will be 42 monthly installments