Table of contents
If you have just received the news that you have been dismissed, the first thing to do is to keep calm and seek the assistance of a labour lawyer who can advise you and represent you in this type of situation, especially if you have been working for the company for more than 5 years.
If you have been dismissed, the most important thing is:
- Ask for the reasons for the cause of dismissal and check that it is related to the type of dismissal made.
- Make sure that the calculation of your severance pay is correctly done.
- If you do not agree with the type of dismissal, sign the Letter of Dismissal as not in agreement.
- Consult a lawyer who is an expert in labour law to check the documentation provided and that the dismissal has been carried out correctly, otherwise you can start the proceedings to challenge the dismissal.
What does it mean to challenge a dismissal?
The contestation of dismissal is a very common procedure when an employee does not agree with the type of dismissal made or has not received the corresponding severance payment.
This legal procedure allows a judge to assess the situation and correctly determine whether the type of dismissal is fair dismissal, unfair dismissal or null dismissal.
If you want to know the approximate amount of severance pay you are entitled to, you can consult our severance pay calculator, where you will find all the information you need to know.
How long do I have to contest a dismissal?
A dismissal can be challenged within 20 working days if it has been communicated verbally or in writing.
You must be able to identify the type of verbal dismissal very well, as it can be somewhat confusing, which is why the time period of 20 working days is established to challenge the dismissal.
The company may give you a disciplinary dismissal, a collective dismissal or a dismissal for objective reasons, although you can go to the SMAC to challenge any dismissal if you are not satisfied.
Dismissals must be communicated in writing, stating the reasons for the decision.
How to contest a dismissal? Complete guide to redundancies 2022
We always recommend that you seek the assistance of a labour lawyer who can accompany you in the procedure to challenge your dismissal.
Here are the steps to follow to challenge a dismissal:
- Submit to the SMAC (Servicio de Medición, Arbitraje y Conciliación) a conciliation letter, requesting the resolution of a conflict between company and employee, in which a dismissal has been made that is inconsistent with the actual circumstances.
- Once the company has received the conciliation letter, it may be possible to negotiate a settlement and bring the dispute to an end. It is advisable to be assisted by an employment lawyer in dismissal matters, as the negotiation may be much more beneficial to the represented party.
- If an agreement cannot be reached between the two parties, it will be necessary to go to the conciliation hearing where the worker and the company will present the situation in order to hear both sides.
- At the conciliation trial, a lawyer will be present who will act as mediator between the two parties to find a solution.
- At the end of the conciliation proceedings, the mediating lawyer will determine the result of the type of dismissal in the conciliation minutes. The company and the employee must sign the minutes in which the type of dismissal and the amount of the severance pay to be paid will appear.
- Each of the two parties must comply with what is stated in the minutes of conciliation, otherwise, a lawsuit must be filed together with the administrative documentation.
How can a conciliation procedure be concluded?
A conciliation is a trial involving the employer, the employee and an intermediary lawyer who oversees both sides' side of the story and establishes an equitable outcome.
It should be noted that as events unfold, there will be different outcomes:
- Agreement between the company and the worker.
- There is no agreement between the two parties, in which case, the worker will have to file a claim with the Social Court.
- Non-attendance of the company at the conciliation meeting. The worker will have to file a lawsuit against the company.
- Non-attendance, without just cause, by the worker at the conciliation meeting.
- The worker refuses to continue with the procedure after the presentation of the conciliation paper.
Choose the best employment lawyer
G.Elías y Muñoz Abogados, offers you the best labour lawyer to assist you in complex labour law procedures where it is essential to be precise and avoid mistakes.
"Anywhere in Spain"
With our online appointment system you will have immediate advice without the need for face-to-face visits or travel.
One of our lawyers specialized in your area of interest will contact you to formalize an appointment and make your consultation by video call.