What is an employment injury claim or wage claim and what is its procedure?

What is an employment injury claim or wage claim and what is its procedure?
Published on: 18 January 2022

Table of contents

In this article we will try to explain, as simply as possible, what a claim for payment consists of, as well as the necessary process to be carried out. All of this is set out in the Workers' Statute, a document to which we will refer throughout the text and which you can consult if you have any doubts about it.

1. What is a claim for payment?

A claim for payment is, in short, a legal claim made by the worker in which he/she demands payment from the company of the economic amount owed to him/her and which has its origin in the employment and contractual relationship that he/she has with the company. Evidently, as is the case with all claims that an employee brings against the company to which he/she belongs, it implies protection against dismissal that may occur as a result of this claim.

It is also necessary to emphasise that, as stated in article 29 of the Workers' Statute, in the claim for payment, 10% annual interest can be requested, although it is true that this only applies to the amount corresponding to the salary items on the payroll. On the other hand, the statute of limitations for this type of claim is 1 year.

This process is generally known as a claim for payment, although it is true that, in reality, it is an ordinary claim that is brought before the competent social and labour courts. In this regard, it should be noted that the employee has the right to claim the amount owed and interest on arrears corresponding to the last calendar year even after having been dismissed by the company, after the contract has come to an end or after having resigned from his or her duties. This is provided, however, that he has not signed a settlement in full discharge of his duties.

The Workers' Statute also provides that each pay slip is a separate debt. Therefore, the fact that more than 1 year has passed since the worker started to suffer non-payments does not imply the loss of the right to make the claim, but it is limited to claims for monthly payments due within the last 12 months.

2. The procedure for claims for payment

The process by which an employee can make a claim for an amount against a company comprises several stages. In any case, it is worth re-emphasising the fact that the time limit for filing a claim is one year. Let us look at it in detail.

2.1 The conciliation procedure
The first step in the process of claiming an amount is to file a conciliation form with the Mediation, Arbitration and Conciliation Service of the city in which the employee resides and in which the company has its headquarters. The purpose of this document is that both parties can reach an agreement without the need to go to court, although it is true that, on many occasions, it becomes a mere formality that leads to this.

If the agreement is not reached, which unfortunately is the most common case, it is time for the worker to file a claim for payment in the corresponding labour court.

2.2 The order for payment procedure

The payment order procedure was a novelty in Law 36/2011, of 10 October, Regulating the Social Jurisdiction. In general, it is only applicable to those procedures for claiming amounts in which there are no disputes. Undoubtedly, the main advantage it offers, especially for the worker, is that it is much quicker than the ordinary procedure. Moreover, it does not require the services of a solicitor and a lawyer. However, its application is limited to the following cases:

  • Claims made by an employee against an employer who is not in insolvency proceedings.
  • Claims made for amounts not exceeding 6,000 euros in total.
  • Claims for amounts payable, due and of a specific amount arising from the employment relationship that both parties maintained or still maintain, unless they are of a collective nature.

In the event that any of the three cases mentioned above are met, the order for payment procedure must start with an initial request by submitting a specific form to the relevant labour court, which will be provided to the employee and which must contain the details of the debtor's full identity, i.e. his or her Tax Identification Number (NIF) and full address, as well as a breakdown of the amounts and the items claimed.

This form has to be submitted to the relevant labour court accompanied by a copy of the employment contract that binds or linked both parties, as well as an updated employment report and the salary receipts. If the application is accepted, the employer must pay the amount claimed within a maximum of 10 days. If he does so or deposits the full amount with the court, the proceedings will be closed and the case will be deemed to be terminated. If the employer opposes the employee's request, the labour court will inform the employee so that, within a maximum period of 4 working days, he/she may file the corresponding claim with the court, which will be the start of the so-called ordinary proceedings.

2.3 Ordinary proceedings

If the non-payment of salaries is continuous and the employer has refused to pay the debt once the payment order procedure has been completed (it should be remembered that this phase is not obligatory or valid for all cases), the time has come to initiate the so-called ordinary procedure for claiming sums of money.

At this point it should be noted that, if the employee deems it appropriate, he/she can make use of Article 50.1b of the Workers' Statute, which entitles him/her to terminate the employment contract that binds him/her to the company without losing his/her rights. In general terms, this means that, despite having terminated his contractual relationship of his own free will, he will retain the right to receive the same compensation that he would have been entitled to if he had been unfairly dismissed.

Moreover, if the worker chooses to terminate the contract, he/she would automatically become legally unemployed and, therefore, would also be entitled to receive the corresponding unemployment benefit. In this regard, it should be noted that this right is not lost even if the company claims economic difficulties.

In relation to the previous paragraph, the vast majority of companies, as soon as the ordinary process begins, justify the delays and non-payment of wages by claiming that they are in a negative economic situation. However, for the Supreme Court, which has the power to create jurisprudence, this fact is irrelevant to the fact that the worker can decide to terminate his contract because of the delays or non-payment of his salary that he is suffering. This provision is also valid in the event that the company is in insolvency proceedings.

It should be noted that the ordinary procedure does require the hiring of a solicitor and a lawyer by both parties. Once all the facts have been presented, a competent judge will be in charge of issuing a judgement reflecting the amounts to be received by the worker. However, the company can argue, by means of a declaration of insolvency, that it is unable to pay. Similarly, it can also justify itself by saying that it is in the middle of insolvency proceedings.

In the event that the company is in insolvency proceedings or files a valid declaration of insolvency, the Wage Guarantee Fund, which is commonly known as FOGASA, will be responsible for paying the worker the amounts due to him/her based on the wages and compensation that he/she has not received and that are owed to him/her according to the margins established by law.

Before the entry into force of the 2012 labour market reform, FOGASA could pay up to a maximum of 150 days' wages. However, following this, this figure has been reduced to 120 days' salary. Moreover, the maximum amount to be received for each of these days is 50.86 euros. At this point we have to say that this amount corresponds to the year 2016 and that it is updated, depending on various variables such as the CPI, every 1 January.

In the event that the worker decides to terminate his contract on the basis of the provisions of Article 50.1b of the Workers' Statute, FOGASA will only pay him 30 days' salary for each year that he has been employed in the company, with a maximum limit of one year's salary. Furthermore, the worker's daily salary may not exceed, under any circumstances, double the minimum interprofessional wage. Therefore, the aforementioned limit of 50.86 euros is established.

At this point in time, the ordinary claim process is terminated. We hope we have helped you to better understand what it consists of and how it is carried out.

If you would like more information, please contact us for a consultation.

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