Termination of Employment PDF

not working will not be paid. This leave can be continuous or discontinuous. The regulations are not complied if its not paid. - The directive states the days not worked must be paid. However, you can claim this payment. When would you use this? If the kid is coming ba...

not working will not be paid. This leave can be continuous or discontinuous. The regulations are not complied if its not paid. - The directive states the days not worked must be paid. However, you can claim this payment. When would you use this? If the kid is coming back to school, no person to take care of the child. 2. Paid leave of 5 days to care a second degree family member or de facto parteners. It is 5 working days not calendar days. When there is an accident, serious illness, hospital stay or when the family member have to go under surgery and they do not have to stay in the hospital but yes at home for rest. There is no annual limit. Relatives: - Spouse - Facto parteners - Relatives to 2nd degree - Blood relatives of de facto partners - For those people that live with you at home and need care (not specified if they are family members) 3. Paid leave of up to 4 days for unforseeable fmaily emergencies. These are cases of force majeur. It is something urgent of non forseeable of a family member or companion of habitat. If they need your presence and its indispensable. These 4 days can be per hour, day and its up to the total of 4 days per year. Termination of the employment relationship The termination of the employment relationship is the end of the employment, ending work and salary and can happen at any time. This termination has certain legal effects for the worker and company BUT some formalities have to take place for this for happen. Art 49 WS and seq are the ones that mention the causes for termination. It will terminated when: a) Mutual agreement b) Validity consigned in the contract c) Time of the working contract has ended d) Resignation of worker e) Death, severe disability or retirement f) Employer retires or dies g) Force majeure h) ETOP reasons i) The employer has reached the contract j) Worker has been fired k) Objective reasons  l) The worker is victim of gender violence Mutual agreement of the parties – The mutual agreement per SE – it is an agreement at any time and there is no justification. It can be oral or in writing. The only limit is that there can’t be any abuse of rights by the compnay and the worker can’t waive his rights. Causes validity consigned in the employment contract - there was a condition in the contract and the conditions has been fullfilled or not, and the contract is terminated. The limit is like mutual agreement per SE. This condition can’t go against the morals. Expiration of the time given to carry out a work or service subject of the contract – with the new law if the worker continues working after the expiration, the company hasn’t said anything what happens is that the contract is extended to indefinite contract. One of the parties must say the contract is terminated. Notified 15 days before the termination in contracts longer than a year. The worker has the right to recive compensation. Workers unilateral decision – Without cause: Resignation – You have to give an advanced notification regarding to CBA or local custom. - You can resign at anytime. - You have to communicate the decision. - No compensation. - No dole (unemployment benefits) Abandoment – If you do not notify the cia you just leave. With the same conditions as resignation. With cause: Transfer Substancial modification of the work conditions (Art 41 WS) – if the company changes any conditions substantial to work conditions you can quit but with a proof that they are against your dignity, damaging… You will get compensadet 20 days salary per year worked up to 9 months. Gender violence victim (WITH PROOF) – you are going to be protected by certain specific labour rights due to the condition. Women in this situation are protected by law but also improved by the CBA. ▪ If victim will be absent from work or will not arrive on time. In this case, these absence or delays are justified always if that victim can justify that this has been confirmed by Social services.  ▪ Reuqest reduction of working day, however it will entitile reduction of salary ▪ Has the right to rearrange working time (flexible timetable). Have posibility of changing work place due to protection. If there is no vacancy she can ask for suspension of employmnet relationship to a leave of absence with job reservation (up to 18 months stated by court ruling). ▪ Posibility to request termination of contract. ONLY case when you resign and have the right of employmenyt benefits. ONLY requirement prove contribution at least 1 year in the company. ▪ If the company fires a victim while she is entitled to these rights above, this dismissal is null and will be entitled to free legal assitance. ▪ Company that hire victims will obtain certain benefits from SS as well as they hire someone to replace someone that suffers gender violence. Examples: redutions in contributions of the SS. Employer fullfillment (Art 50) – non payment, continuous delays of salary payment and also includes breach of employers contractual modifications. Employers unilateral decision – Disciplinary dissmisal Objective dissmisal Collective dissmisal Force majeur Causes beyond the parties will – ▪ Due to the worker or employers death – - Worker: the money has to be passed to heir if the company has to give them something to the difunt. They have the right of compensation of 15 days (it is not very clear if its still applied). - Entrepreneur/ employer: unless his heirs continue, what will happen is that the employment relationship with terminate. In these cases the workers have the right of 1 month salary. If it’s a company that closes down then we have to treat it as collective/objective dismissal. ▪ Permanenet incapacity in the degree of total, absolute or sever – - Worker: JUST up to this year (2024) it will terminate the contract automatically if there is no possibility to continue the services BUT now the company has to try to adapt the working place to the disability. If the contract is terminated, you will be  entitled to certain benefits of the SS, you need certain regulations which establish the benefits regarding to the diability. - Entrepreneur/ employer: In this case, there must be a resonable time to close down the company and terminate the contract. In the moment he is declared discapacitated, there is a period of 10 months to close down the company. ▪ Retirement – - Worker: It is not mandatory, but in this case you terminate the contract regarding to the type of retirement, if it’s the total you receive a pension of the SS due to the retirement. - Entrepreneur/ employer: The business closes and the workers have the right of 1 month of salary as compensation. If the entrepreneur has partial retirement, he is getting a pension but has the ownership, there is no termination of employment relationship. If he retires and sells busines (company succesion), no termination of relationship. If he retires earlier, it will be considered as an objective dismissal. ▪ Force majeur Dismissal The power of the employer – Article 38 C:E. Free enterprise is recognized within the framework of a market economy. The public authorities shall guarantee and protect its exercise and the safeguarding of productivity in accordance with the demands of the economy in general and, as the case may be, of its planning. Art 1.1 WS Workers provide their services "within the scope of organization and management" of an employer. Art. 5.c WS It is a basic duty of the worker to "comply with the orders and instructions of the employer in the regular exercise of his managerial role." Art. 20.1 WS The worker will be obliged to perform the agreed work under the management of the employer or person delegated by the employer" Power of management: This is a power which the employer uses to organize and manage the company. Management power: Rule making power: power to give general instructions to manage a business and give especific orders to the workers. Example: when there is a functional mobility these powers are included OR when is a modification of conditions due to ETOP reasons. “Ius variandi”- right given to an employer to change things. Control power: Is a power of surveillance, has the right to make sure to take out your employment obligations (control the worker). This power has to be suitable, strictilly necessary and proportional. It always has to respect the workers dignity and privacy. Example: Art 20 WS – the workers have right to the privacy of digital disconnection. However, the employer has the right to use cameras or mics (can’t be at the same time installed) in the office BUT always respecting the laws regarding to the protection of personal data and guarantee digital rights. Disciplinary/ sanctioning power: in the case the worker doesn’t comply with the obligations he will be sanctioned regarding to the CBA or law. Police power: when the employer has the power to do searches on the worker like locker, belonggings, desk… ONLY when its strictly necessary like a robery or event that leads to this situation. Another worker has to be present during these searches. Jurispruedence allows that if you have a closed envolop it is allowed to be opened. They can search you car ONLY if its in the parking lot and working hours, if they open el maletero and there is a box, you can’t open it. Limits of these powers – it can be only carried out in the labour relationship. However, if the behaviour is out of the scope and could affect the reputation then it could be used. There are heteronomous limits provided by constitutions and legislations the law has established that companies between more than 151 have the duty to creat equal plans for both genders. Autonomous limits that are the ones arrising from the employment contract and CBA. Types of dismissals – 1. Collective dismissal → regarding a group of workers, it can be for bjectve causes 2. Objective dismissal → can be for 1 worker or for a collective group of workers 3. Disciplinary dismissal Collective dismissal – ○ = When the termination decision of the employer affects a certain number of workers in a specific and legally established period of time ○ End of the employment contract based on ETOP reasons (economic, technical, organizational or production)  ○ Affects a group of workers in a certain period of time → it is considered a collective dismissal based on this: in a period of 90 days, it will affect 10 workers in companies of less than 100 workers, OR 10% of workers in companies between 100 and 300 workers, OR 30 workers in companies of more than 300 workers ○ For the WS, it is considered that a collective dismissal is for: Economic reasons when the company is showing a negative economic situation e.g., losses, persistent loss in the company Technical → changes in the tools e.g., automation of the task performed thus no need for manpower anymore Organizational → they change the systems or methods of work e.g., a retail store switches to e-commerce Production → when there are less orders / clients and thus company doesn’t need such an amount of workers ○ Procedure to be followed to carry out a collective dismissal: Before starting the procedure, the company management have to inform the workers that they are going to start this collective dismissal procedure Once this decision is communicated, the workers reps have between 7-15 days to set up a committee The opening of the consultation period has t be in writing and sent to the workers reps , and this has to be notified to the labor authorities (explaining the reasons for the collective dismissal, and provide all evidence etc., ) Consultation period can’t last more than 30 days, or more than 15 days if it’s a company with less than 50 workers Labor authorities to be informed of the result of this consultation period, then labor authorities will obtain a report from the SS inspectorate regarding the conclusion of this consultation period ○ Written communication → carta de despido → indicating the reason of the collective dismissal ○ Provide the compensation of 20 days per year worked with a maximum of 12 months ○ Notice period of 15 days from the moment employees get the letter to the end of the contract ○ Difference between ERE and ERTE 1. ERE’S → dismissal + compensation 2. ERTE’S → suspension + unemployment Objective dismissal - ○ Termination of the employment with a reason justified by the company ○ These reasons are established in Art 52 WS  Ineptitude of the worker known or supervening (causas conocidas o sobrevenidas) up his effective placement in the company e.g.m worker loses the qualification that he had to practice that job Lack of adaptation of the workers to his job and to the necessary technical modifications → BUT when there is a functional mobility and you can’t adapt to the new job you have been assigned, they can't fire you ETOP reasons → most are for ETOP reasons ○ Written communication (carta de despido) + compensation → if you sign it it doesn’t mean that you agree → you have 20 days to challenge it after you sign it ○ If company is firing you because of economic reasons, its possible that you won’t get this legal compensation —> if this is the case, the employer must mention it in the letter (that they won’t pay you the compensation because they don’t have money) → but worker still has the right to reclamar the payment ○ If company declares itself in bankruptcy, then the payment will be done by FOGASA (takes care of the compensations of the workers e.g., Spanair) ○ Notice period of 15 days from the moment you receive the letter to the moment the contract terminates Disciplinary dismissal - ○ Based on a serious and accountable breach by the worker ○ Art 54 WS ○ Reasons that would be penalised with a disciplinary dismissal: 1. Misconduct of the worker a. Indiscipline or disobedience at work b. Verbal or physical offenses against the employer or persons working in the company or family members living with them c. Breach of good faith → The transgression of contractual good faith, as well as the abuse of trust in the performance of work e.g., when a worker is not working due to disability but is working somewhere else, or when worker accepts bribes, stealing, doesn’t respect professional secrecy d. Regular drunkenness or drug addiction if they have a negative impact on the work 2. Breaches in performance of work a. Repeated and unjustified failure to attend work or to be on time → exception are victims of gender violence b. Continuous and voluntary decrease in work performance c. Harassment based on racial or ethnic origin, religion or beliefs, disability, age or sexual orientation and sexual harassment or harassment based on sex against the employer or persons working in the company  ** FOR A DISCIPLINARY DISMISSAL, NO COMPENSATION, BUT YES DOLE (PARO)** ** IN ALL TYPES OF DISMISSALS, YOU WILL GET THE SEVERE OR SETTLEMENT PAYMENT (FINIQUITO) ** ○ Formal procedure: Written communication (standard for all types of dismissal) Employer has to state the facts that motivated that dismissal and the day on which it will take place Offence has an expiring date → worker can’t be waiting forever for a company to sanction him → depending on the infraction, each infraction has a different expiring date Minor infractions → offence expires in 10 days Severe → offence expires in 20 days Very serious → offence expires in 60 days Worker has the right to a prior hearing Letter has to be delivered to the worker Conciliation Act - ○ When a worker is fired, and they disagree with the reasons, they can take the company to court. BUT in certain situations, it is mandatory to go through a conciliation act before taking the company to court ○ Act of conciliation is a prior and compulsory admin procedure that takes palace before the Mediation and Arbitration Service (SMAC) of the Ministry of Labour and SOcial Affairs ○ Main Aim = to help the worker and the bs reach an amicable agreement to resolve a about dispute, thus avoiding the need to go to court ○ In which cases is an act of conciliation mandatory? 1. Dismissal 2. Disputing sanctions 3. Claim for payment 4. Recognition of rights ○ How does the conciliation procedure work? Presentation of the conciliation paper → worker presents conciliation paper to SMAC → SMAC summons both parties, worker and bs, to attend the conciliation proceedings n a specific day at a specific time Conduct of the proceedings → at the conciliation healing, both parties have the opportunity to present their claims and to try to reach an agreement → the conciliator (SMAC official) acts as an mediator between the parties and helps them find a mutually satisfactory solution Outcome of the procedure  Settlement → parties reach an agreement OR Non-agreement OR Absence of the company → go directly to court ○ Going to court. Then effects of a dismissal can be: 1. Fair → judge declares fair because the employer has proved that the reasons why he has fired the worker were the correct ones 2. Unfair → employer couldn’t prove reason of dismissal is fair or he did not provide with one of the formalities that he must comply with then dismissing e.g., written communication, sending letter to workers reps, etc. a. After this ruling, employer has 5 days to reinstate the worker or pay him a compensation → compensation is 33 days salary per year worked with a maximum of 2 years b. If employer doesn’t say anything in these 5 days, it is understood that they are going to reinstate the worker 3. Null and void → the employer has to reinstate the worker and CAN’T be replaced by compensation → cases where there has been discrimination, violation of workers rights, etc.; when workers are in suspension of their contracts due to maturity, risk during pregnancy, breastfeeding, childbirth, adoption, etc. and they are fired, it will be null and void; also applied to victims of gender violence who are fired; when you have finished the employment suspension due to maternity leave and you come back to work, they can’t fire you until your child turns 1 y/o → BUT if company can prove that dismissal is not related to any of these cases, it wouldn’t be null and void BUT its very difficult to prove this in these situations Alternative dispute resolutions (ADR) Lawsuit culture: We sew for any reason, which makes the legal system/courts overloaded. ADR’s started in the USA which tried to find ways to not make everyone go to court. Resolution of labour conflicts – Judicial = In court Extrajudicial = Out of court They are applied in any law. However, in labour law there are lots of situations that are conflictive as parties are different, contracts… and there are different ways to solve these problems. Art 24 WS : everyone has the right to judicial protection (Fundamental rights BUT NOT a duty). o Mediation: 2 parties in conflict and the third party which is the mediator. In this case, he also brings the 2 parties together and he proposes 1 or more solutions to the parties. The solutions are not binding. o Negotiation: when 2 parties establish certain clauses where if they have disagreements, they will try to negotiate the solution before going to court. o Conciliation: there are the 2 parties and a neutral person that is known as a conciliator. The conciliator calls the parties and request negotiate the conflict between them. His role is to improve communication amongst them but NOT offer solutions. o Arbitration: A group of persons that are neutral experts. The solution that the arbitrator offers is binding, the parties MUST follow the solution. It is always a win-win solution (both parties win). The solution is known as an award. Res judicata: The matter has been solved. There is not a possibility to appeal ONLY if there is a defect in the procedure. They can be: - Statutory origin: those established by the law the state intervenes by providing rules. - Conventional origin: the rules are established in the CBA or Cia agreements. Means of labour pressure for resolution of disputes – Strike (Art 28.2): A way to express disagreement by disrupting work and to put pressure on the company or employer to achieve a solution. Usually, it happens when other negotiations have failed (last resource). The reasons must be legitimate, EXCEPT the law is going to affect your professional interest. It’s illegal to strike to modify an agreed solution and when it violates the provisions of law. When you want to start a strike, you have to request an authorization including: date, reason, name a strike committee and must inform the company between 5-10 days before and guarantee minimum service. If these requirements are not complied its considered wild strike. Solidary strike: when a same sector strikes and you decide to strike. What happens if a group of workers go to strike: - If he goes to strike, he can’t be penalized or dismissed because it is a fundamental right. - BUT the employment contract is suspended for the time in strike and therefore you can’t get the salary for the days or month in strike. - In SS, you will obtain certain benefits and other you will not. - When a strike happens not everyone has to go to strike. Lock out (cierre patronal): It consists of the closing of the company requested by the worker in the case of strike or any regularity that may endanger; the workplace, production process, other workers, employers… there must be a danger that threats the company. - There will be a suspension of contract - It is not a strike of the employers because they are not protesting, it is a measure of defense against this illegal danger that could be caused due to a strike. Example: Piquets that are violent protestants that want to destroy everything, the employer can do a lockout. - It is not a fundamental right like a strike, BUT it is also a right. - The employers can only carry it out when there is a conflict. - It can be exercised by 1 or more employer and can affect some part or all of the company. - It is temporary. - The most important consequence is that the worker can’t access the company and therefore they can’t work or meet. NOT USE the right of assembly. The law established when the lock out can happen: - Autourius danger/damage to the company or persons in it - Illegal occupation of the workplace the workers have forced the entrance and refused to leave. - When the volume of absentees or irregularities are affecting the production process. - The employer doesn’t need authorization BUT they must communicate to the labour authority. - They have 12 hours to inform from the moment it starts. - The communication is NECESSARY because since there is not a time or amount of time that is given by the law established on the duration, with this notification what the labour authorities do is establish the reason of the lock out is justified or not and if NOT they will request the immediate opening of the company. Legal lockout: - The contract is suspended for everyone = no salary - The workers during the lockout can’t be sanction except they have committed a crime through the lockout. - They are under SS benefits (some). - No right of unemployment (el paro) during the lock out. - There is no right to temporary diability BUT yes to health. Illegal lock out: - The company is going to be fined. - The workers are entitled to the salary that they didn’t get when the lock out. - The special registration of SS is also given. If the workers disagree with the lock-out they can bring the cia to court and the cia can counter claim if they believe to have justification. Workers representatives – The Constitution states the workers have the right to participate in the company. This right is also seen in the WS and in other trade unions. Worker representative: person that defends workers rights regarding negotiation process, agreements in the CBA… Types: - Staff delegates: When a cia is up to 50. - Workers councils (comite de empresa): When the cia has more than 50 workers. - Trade unions: National level, defending workers interest in cases like labour reform Rights: - Informed and consulted on issues affecting workers. Situation of the company and evolution of the employment in the company - Quarterly informed on the general evolution of the economic sector of the company, economic situation of the company, production and sales, new contracts are of absenteeism’s, work - Accidents, occupational illnesses, studies o f work environment and prevention mechanisms  - Informed on the company’s application of the equal treatment and opportunities between men and women - Knowledge of the balance sheet, profit and loss accounts, annual report and sanctions imposed to workers for very serious misconduct - Right to issue are portprior to execution of decisions adopted by the company such as ; restructuring of the workforce, reduction of working hours, relocation, m&a, professional training plans. - Implementation and control systems o f work organization, bonuses, job evaluations. - Monitorization of the compliance with social security and employment regulations - Participate in the CBA - Collaborate with the company’s' management and implementation of conciliation measures Guarantees: - Can’t suffer discrimination of salary or promotions - If he is going to be fired of disciplinary conduct, you have the right to open a contradictory report (defending yourself) and a hearing. Now if you are a worker, you also have this right. - Priority to stay in the company in the case of transfer, collective dismissal… - They cannot be fired or sanctioned after a year if they stop doing this role. EXCEPT disciplinary dismissal. - Right of freely express their opinion - They get paid for being workers representatives.