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A dismissal is usually one of the hardest situations that an employee has to face in the course of his or her professional life. However, not all dismissals are due to the same circumstances. There are times when the situation arises due to non-compliance or serious misconduct by the employee. When this happens, the employer has the power to carry out a disciplinary dismissal. But does the individual retain the right to receive compensation and unemployment benefits? Let's find out.
What is disciplinary dismissal?
Disciplinary dismissal is regulated in article 54 of the Workers' Statute. Specifically, this law defines it as the termination of the employment contract by decision of the employer when the worker has committed a serious and culpable breach of his or her obligations.
But what is meant by breach of contract? Let's take a look:
- Disobedience or indiscipline.
- Repeated and unjustified lack of attendance or punctuality.
- Abuse of trust and breach of contractual good faith.
- Verbal or physical offences against the employer, colleagues or family members.
- Voluntary and continuous reduction in agreed work performance.
- Harassment of the employer, superiors or colleagues due to age, sexual orientation, race, etc.
- Habitual state of drunkenness or drug addiction whenever it negatively affects work performance.
How is a disciplinary dismissal executed?
Unlike other types of dismissal, disciplinary dismissal does not require the employer to give the employee at least 15 days' notice. In fact, even if the employee wishes to challenge the termination of the contract, he/she cannot plead his/her absence in order to have the dismissal declared null and void or unjustified.
The notice of disciplinary dismissal must always be in writing. It must state the exact date on which it will come into effect and the reasons for it. It must also include the settlement, which will be paid immediately, as well as the company certificate enabling the employee to apply for unemployment benefits. You also have the option of sending it directly to the SEPE.
The settlement for disciplinary dismissal
We have just referred to the settlement, i.e. the termination for disciplinary dismissal. This is a right that any employee has, regardless of the reason for dismissal. The reason? It is made up of remuneration that you are entitled to for having worked for them.
Specifically, the severance pay is made up of:
- The unpaid salary days belonging to the month in which the disciplinary dismissal takes place.
- The days of holiday that correspond to the worker and have not been taken.
- The proportional parts of the unpaid extra payments.
- Any other salary or non-wage supplement to which he/she is entitled (night or danger bonus, allowances, etc.).
Therefore, the employer cannot refuse to pay the severance pay even if the dismissal was unfair. Compensation is a very different matter.
Compensation for disciplinary dismissal
Compensation for disciplinary dismissal does not exist. In other words, the employer is not obliged to pay any financial compensation to the employee for terminating the contract. Serious fault in the faults and breaches referred to above give him this right.
However, in this situation, the worker has 20 working days from the date on which the dismissal came into effect to challenge it before the corresponding labour court. After doing so, there will be an act of conciliation and, if no agreement is reached, it will be a judge who will make the decision he or she deems appropriate based on the evidence provided.
In this sense, if the employer justifies the cause that motivated the disciplinary dismissal, the dismissal will be declared fair and its effects will be maintained. On the other hand, if it does not, it will classify it as unfair and force the worker to be reinstated or pay compensation. You can also consider it null and void if it has violated any fundamental right.
Are you entitled to unemployment benefits in the event of disciplinary dismissal?
The answer is yes. In fact, no type of dismissal deprives the worker of the right to unemployment benefit as long as he/she fulfils the requirements laid down by law. These are as follows:
- To be affiliated and registered with the Social Security.
- To be legally unemployed.
- Be registered as a jobseeker.
- Have worked and paid contributions for 360 days within the previous 6 years.
In short, disciplinary dismissal exempts the employer from paying the worker's severance pay. However, he/she is obliged to pay the severance pay and to give him/her the company certificate by means of which he/she can apply for unemployment benefit, if he/she meets the requirements.
In any case, if you do not agree with his decision or have any doubts about it, please contact a labour lawyer from our team. He or she will provide you with the advice you need and, when the time comes, defend your rights and interests.
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