Disciplinary dismissal for serious misconduct

Any employer, whenever one of his employees commits a series of faults stipulated as serious in the Workers' Statute, has the power to unilaterally terminate the employment relationship that unites them. This is known as disciplinary dismissal and we will focus on it here.

What is a disciplinary dismissal?

Disciplinary dismissal is, as we said briefly in the introduction to this article, the decision taken by the employer to terminate the employment relationship with an employee. However, in order to be able to apply it, it is necessary to have incurred in serious behaviour whose guilt is demonstrable. Currently, it is the most common type of dismissal in Spain, given its subjective nature. This also means that the employee affected can challenge the dismissal if he/she deems it appropriate.

Grounds for disciplinary dismissal

To find them, we need to take a look at article 54 of the Workers' Statute currently in force. Specifically, that text talks about:

• Indiscipline or disobedience to the employer.
• Repeated and unjustified lack of punctuality or attendance at work.
• Breach of contractual good faith or breach of trust.
• Offences against the employer, co-workers or family members. These may be physical or verbal.
• Harassment of co-workers or the employer.
• Drug addiction or habitual drunkenness as long as it affects the performance of their work duties.
• Voluntary and continuous reduction of the agreed work performance.

Obviously, this list is very general. This is because it is intended for the collective agreements of the companies or labour sectors in the country to design more specific ones. In them, it is possible to find fully detailed causes for dismissal for serious misconduct.
However, if there is no labour agreement in force, both the employer and the employee must comply with the provisions of the aforementioned article of the Workers' Statute.

Consequences of disciplinary dismissal for serious misconduct

Disciplinary dismissal must be notified to the employee in writing. Once this point has been reached, and unless the labour agreement in force specifies another mechanism, the employer must give a hearing to the trade union to which the employee is affiliated or to his or her legal representative. At that meeting, always taking into account the evidence provided by the employer, the dismissal will be classified.

The following may occur at this stage of the process:

• The employee is in agreement or the evidence proving his or her faults is irrefutable. In this case, the dismissal is considered fair and has the appropriate effects.
• The employer does not provide irrefutable evidence or the employee does not agree with the classification of the dismissal.
• The effects of dismissal for serious misconduct of a disciplinary nature

Here comes the really interesting part. If the employee does not contest the dismissal, he/she will automatically be dismissed from his/her job. In fact, there is no severance pay for disciplinary dismissal, so you will only receive your severance pay. You will, however, receive a company certificate that will allow you to claim unemployment benefit if you are entitled to it.
If you do not agree with the classification of the dismissal and contest it, three things can happen:

• The judge classifies the dismissal as fair. That is to say, he/she agrees with the employer and allows the employment relationship to be terminated without the worker being entitled to compensation.
• The judge classifies the dismissal as unfair. In this case, the employer must pay the worker the corresponding compensation (33 days per year worked) or reinstate the worker in a position equivalent to the one he/she held previously. The employer must pay the processing wages.
• The judge classifies the dismissal as null and void. The employer is obliged to reinstate the worker in his post, paying him the wages for processing.

But how can a disciplinary dismissal for serious misconduct be challenged? To answer this question, we must turn to article 103 and following of the Law Regulating Social Jurisdiction. This gives the employee a period of 20 working days from the notification of the dismissal to file a conciliation and subsequent lawsuit in the corresponding Social Court.

It should be noted that the employer is always the party obliged to prove the truthfulness of the faults committed by the worker that led to his dismissal for disciplinary reasons. Nor should we forget to say that, even if the dismissal is declared null and void and the employer has to reinstate the employee, he/she may terminate the employment relationship after 7 calendar days have elapsed.

We hope we have cleared up all your doubts regarding disciplinary dismissal and the serious misconduct that can lead to it. If you have any doubts about this issue, do not hesitate to contact a lawyer specialising in dismissal from our firm. We attend in person in Madrid and also online through our video call service. We defend your interests anywhere in Spain.