How to dismiss a worker

It is probably the most thankless moment in anyone's career. It doesn't matter whether we are talking from the employee's or the employer's point of view. Firing an employee is never a good thing to do.

However, it is not something that can be done in any way. The Workers' Statute specifically regulates how to dismiss an employee. Here we would like to explain it in detail for each case.

Types of dismissal

When it comes to dismissing an employee, the first thing to consider is the reason? The amount of compensation to be paid will vary substantially depending on the variant chosen. However, it is essential to justify the decision taken in order to avoid possible legal claims:

• Dismissal for objective reasons. This entitles the employee to a severance payment of 20 days' pay per year worked. These causes are economic (two consecutive semesters with lower sales than in the previous period), technical (for example, the implementation of an innovation that eliminates jobs), organisational (elimination of some positions in the organisational chart to add new ones) and productive (reduction in demand for products or services).
• Unfair dismissal. Allows the worker to receive compensation equivalent to 33 days' salary per year of service (45 days for the period prior to February 2012). This occurs when the employer wants to terminate the worker's contract, but cannot justify any legal cause. It should be noted that the validity or invalidity of a dismissal can only be determined by a judge.
• Collective dismissal. This is a variant of dismissal for objective reasons. It is applied when companies with 100 or fewer workers proceed to the termination of 10 or more contracts in a period of less than 90 days. Also when larger businesses make redundancies equivalent to 10 % or more of their workforce. It provides the possibility of receiving compensation of 20 days' pay per year worked.
• Disciplinary dismissal. This is the answer to the question of how to dismiss a conflictive employee. There are attitudes on the part of the employee that can lead to the termination of the contract, even if the employee's performance is good and there are no objective causes that justify it. This is the case, for example, of attending work in a state of drunkenness on a regular basis, repeatedly and unjustifiably missing work, showing disobedience and indiscipline, or harassing or offending colleagues physically or verbally. This type of dismissal does not entitle the employee to compensation.

A note. It does not matter whether the dismissal gives rise to a severance payment or not. In all cases, the employee is entitled to receive his or her severance pay, which is the proportional amount of the current month's salary, extra pay and holidays not taken. He/she will also receive the company certificate that will allow him/her to apply for unemployment benefits if he/she fulfils the necessary requirements.

How to fire someone?

Once the type of dismissal has been chosen, it is time to communicate it in due time and form. To do so, the company must communicate its decision to the employee in writing by means of a document that must contain the following information:

• Name of the employee to be dismissed.
• Date of delivery of the letter of dismissal.
• Date on which the employment relationship is to be terminated.
• Reason for dismissal.
• Company stamp or signature of the person in charge.
• Proposed termination.

Except in the case of disciplinary or unfair dismissal, where the notice period does not apply, the employer is obliged to deliver this document to the employee at least 15 calendar days before the effective date of the termination of the contract.

Since failure to do so will result in the dismissal being unlawful, it is very important that a means of ensuring receipt is used. For example, it is possible to hand-deliver it for the employee to sign. However, he or she may refuse, so it is always advisable to have witnesses. You can also opt for registered mail or burofax.

During these 15 days, the employee is entitled to 6 hours a week off from work for the purpose of looking for a new job. Absences resulting from this will not entail any reduction in salary.

Once the date on which the dismissal comes into effect, the company will notify the Social Security, the Tax Agency and the State Public Employment Service (SEPE) of the worker's dismissal. The latter will receive the company's certificate, thanks to which the employee will be able to apply for unemployment benefits, if applicable.

In short, this is all you need to know about the question of how to dismiss an employee. In case there are still any doubts or if you have to face legal proceedings, it is best to enlist the services of a good employment lawyer.