What to do if you disagree with a dismissal?

What to do if you disagree with a dismissal?
Published on: 29 April 2022

Table of contents

Unfortunately, dismissals are the order of the day and can occur at any time in our working life and many times we do not know what to do when we do not agree with the company's decision.

The letter of dismissal given to the employee is a document that the company must provide to the worker to notify the dismissal, expressing the reason for the termination of the employment contract. But the doubt for many is whether or not to sign it. For peace of mind at the time of the trial, if you do not agree with the dismissal, you can sign a "I do not agree".

Naturally, when you disagree with a dismissal it is because a company has decided to terminate your services without a valid or legitimate reason; but in some cases there may be real and obvious reasons why a person is unwilling or unable to keep a job, in this case, they would be justified dismissals.

When a dismissal occurs, there are two possible alternatives, whether we agree or not; in either case, if there is doubt or if you do not agree, it is better not to sign it.

In both cases, the ability to challenge the tribunal's decision is very different.

In the first case, you can go to court at any time, and in the second case, you would have to prove that the consent or termination form was incorrect when you signed the contract.

Of course, before you go down this route, you need to make sure you have a strong factual argument to back it up and we recommend that you contact an employment lawyer who is an expert in employment law.

The precautions and actions to be taken in the event of dismissal are as follows:

(i) Express their disagreement with the dismissal

If you receive a letter of dismissal with which you do not agree, you must express your disagreement by means of a contestation or dismissal complaint. It is up to the courts to decide whether the dismissal is considered fair, unfair or null and void.

(ii) Filing of the conciliation letter

It should be borne in mind that there is a legal deadline for this action, as there are only 20 working days to go to the Social Court. Once the conciliation paper has been handed in, the Preliminary Act of Compulsory Conciliation will take place.

There is a formal conciliation paper, however, it is always better to have a labour lawyer draw up a paper to outline all the relevant facts, which will also be reflected in the lawsuit if necessary.

iii) What should be the content of the conciliation letter?

The conciliation ballot must contain the personal data of the participants, the location and type of work, type of occupation, qualifications and remuneration. In addition, it also has to specify the facts and in case of dismissal, notify the effective date of the company's objection. Finally, the date and signature.

(iv) Prior Compulsory Conciliation Act

The aim of this act is to reach an agreement between the company and the dismissed worker, thus avoiding a later claim before the social courts. This act could end with an "agreement between the two", "no agreement" or "tried without effect".

If there is agreement

In the minutes, the qualification of the dismissal, the agreed compensation and the form of payment, if this has been agreed by both parties, must appear. If, on the other hand, it has been decided to reinstate the worker, the subcontracting payments will be coordinated.

If the mediation concludes with an agreement, the dismissal can be resolved, unless the company does not pay the agreed amounts even in the case of an agreement, in which case enforcement proceedings must be initiated and the agreed amount must be collected in the Social Court.

If there is no agreement

If there is no agreement, an action must be brought before the labour court. To do so, the employee must file a claim with the Social Court and must take into account the time limit, which is 20 working days.

The claim must include the plaintiff, the facts that are requested and everything that is necessary to be able to resolve the matter being sued, as well as the date and signature.

It must be clear that going to court is the only way to say that we do not agree with the company's decision.

Once the lawsuit has been filed, the Court will admit the lawsuit and will summon us for trial. Before the date of the trial, five days to be precise, the evidence that we want to use must be proposed.

When the trial date arrives, it will be held and a judgement will be handed down in which the dismissal may be classified as fair, unfair or null and void.

We must bear in mind that we can lodge an appeal for reconsideration within five days against the judgement handed down by the Social Court.

After the appeal has been processed, the High Court of Justice will issue a judgement. An extraordinary appeal in cassation may be lodged against the judgement, which is difficult to access but not impossible.

In any case, we recommend that you go to a Labour Law Firm who will be able to advise you on the actions to be taken, always looking after your interests.

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