Compare and Contrast Wrongful and Unfair Dismissal

Disciplinary Dismissal means the termination of the employment contract by unilateral will of the employer on the Serious and willful breach of contractual obligations, both main and accessory by the worker.

Disciplinary dismissal as a sanction, therefore, justification depends on the degree of culpability of the worker and the seriousness of the breach. Disciplinary dismissal is the most severe sanctions that the employer may require the worker in the exercise of disciplinary powers conferred on it by Article 58.1 of the ET, it must be subject to restrictive interpretation. This means that they have assessed the background and circumstances involved in the alleged failure that can lead to its imposition.

Therefore, for the failure of the worker can become a cause that justifies the dismissal decision, has to reach levels sufficient gravity and culpability, which excludes its application to objective criteria and requires individual analysis of each behavior, taking into consideration the circumstances that make up the fact and the offender, in order to determine the proportionality between punishment and offense.

The possibility of punishing the employer is a result of exercise of discretion, this discretion does not mean that one can violate the equal treatment of more severe penalties imposed some workers than others identical to behavior or acts without proven justification.

3. CAUSES.

Article 54.2. reflects the adjustment of just causes for dismissal disciplinary six letters, from a) to f) containing the worker’s contractual breaches that could lead to dismissal.

Through collective bargaining and can create additional rules to those provided in the ET for the specificity and quantification of conduct for the purpose of identification of faults and their corresponding penalties. These rules can not prevent a company a penalty of dismissal where the worker’s conduct integrates a very serious offense.

3.1. Absenteeism and lateness.

The repeated and unjustified absences and lateness to work assistance will be considered breach of contract.

Case law has stated that the lateness is equivalent both to be late for work as to leave too soon, and leave the same without justification and in the day, while the absence refers to those cases where the worker does not attend his daily tasks.

They have to attend both the repetition and the lack of justification for the absence and tardiness lead to the sanction of dismissal.

In case of prolonged and unjustified absence will be considered as a case of abandonment, resignation implied, of the worker. If so it would not be any business event for the termination of the contract and would have occurred by the will of the worker.

3.1.1. Repeat.

The law does not specify the amount of non-attendance or punctuality at work that are necessary to justify a dismissal are therefore collective agreements in the table of offenses and penalties, which may specify the number that justified dismissal . And in case of silence of the agreement will be for the courts to decide freely the extent of repetition referred to the law, being common in this sense that more than three absences are wedges of dismissal, and to consider the specific circumstances of each case: time of occurrence and effects.

No need has been sentenced previously for individual each of the faults.

The starting day of limitation for misdemeanors is the last tardiness or absence from work.

The dismissal letter must clearly and precisely specify the date and number of absences and lateness.

3.1.2. Justification.

Accredited reality of the failures is the worker who must prove that occurred for cause. It allows the justification a posteriori of absences or delays in cases where notice is not possible. The lack of communication to the employer of a sick shall not operate as a cause for dismissal if the disease is real.

At first the absence and lateness will be justified if there legal or regulatory provision or moral or social circumstances that excuse the absence.

Assumptions are often considered unexcused absences that constitute grounds for dismissal: failure to return to work after having obtained the highest part of sickness, leave the company for not granting permission for attendance at a training course, absent for decision unilateral worker before the commencement date of the holidays, leave because the employer did not pay the worker his wages, a worker unilaterally deciding to take an unpaid leave.

3.2. Indiscipline or disobedience.

Will be considered breach of contract by the worker both as disobedience indiscipline at work. The

Disobedience is a breach of the orders and instructions issued directly by the employer, or his deputy person in the regular exercise of its powers of direction.

The discipline is the breach of duty of care and collaborative work, disobedience, insubordination accompanied by a manifested in clashes with the employer or the disruption of normal work.

Configuradota indiscipline of dismissal must be clear, open, serious, no reason or basis whatsoever, because if attends a justification has to deserve a more softer than the sanction of the working resolution of the relationship.

The worker can not be constructed in defining their own obligations, without prejudice to the right to seek legal action against the employer. However you can refuse to execute what is ordered when by its nature and significance affecting the dignity and respect due to the employee, if orders affecting a worker’s private life, or when there are situations of physical danger to workers .

Would lead to dismissal for disobedience refusal to work of employees designated to perform services on strike or minimum essential services or maintenance services and security in any strike, provided that these services have been set under the law, according to judicial interpretation there a duty of obedience which noncompliance may be grounds for dismissal.

3.3. Verbal abuse or physical.

For expressions understand verbal abuse, oral or written, which involve a moral offense to the person who suffers or receives, insults, threats or blackmail.

Physical offense means the unfair attack from one person to another, physically, to make it the object of an attack or injury to mortify their integrity or damage his bodily integrity.

Be considered breaches of contract by the worker both verbal and physical insults to the employer, to persons employed in the enterprise or family members living with them. Offender can be both to employees and their family members or a third party sent by this. There is a need for insults or attacks carried out in the middle, or working hours.

The offense has to be serious as difficult coexistence between victim and offender, and guilty, without the need to constitute a crime or misdemeanour, as contractually required standards of conduct need not coincide with the criminal.

Intent must be given to the employee, taking into account the circumstances of each case that may act mitigating or exonerating guarantors, since the same word, one gesture or act may have different significance in different cases.

The challenge will be an exonerated if you have sufficient time to the facts.

Will be considered the existence of an alleged rift between workers of offenses punishable by dismissal, while taking into account that in a fight one of the parties may have acted in provocative, which could exonerate the other.

Offences involving an excess in the exercise of freedom of speech is punishable only in proportion to the entity itself.

3.4. Violations of good faith and breach of trust.

The breach of good faith and breach of trust in job performance are considered breaches of contract.

The violation of contractual good faith is because generic dismissal refers to the failure of the natural obligation of loyalty, diligence and loyalty, enforceable obligations for the proper working order and the interests of the company. It may also be grounds for dismissal that the unfairness or abuse of trust affect third parties such as customers or service users, which causes a loss of prestige in the image on the employer.

They are manifestations of good faith contractual:

• Fraud or deceit produces or prepares malicious damage to the company.

• The conscious disloyalty or malicious breach of duty of loyalty.

• Abuse of trust or mistrust use only deposited in the worker.

• The inexcusable neglect or lack of due diligence or enforceable.

Some specific cases of violation of contractual good faith and breach of trust are:

• The appropriation of funds or property of the company, particularly when bound to its custody, regardless of the amount of its value.

• The performance of work without permission or self employed in the same branch of activity of the company, although the injury did not take place.

• The performance of work by self-employed persons, profit or otherwise, during the temporary incapacity, especially if it impairs the healing process.

• The permit application for a specific purpose after it not be true.

• The professional title misrepresentation due.

• Physical damage by negligence.

3.5. Decreased performance.

Will be considered breach of contract and voluntarily continued decline in the performance of normal work or agreed.

A reduction in yield is voluntary when it is due to culpable negligence and fault of the worker. This requirement of voluntariness does not occur in the case of “incompetence” of the worker, if known or occurrence after actual placement in the company, constitute a ground for terminating the contract or cause of permanent disability extinction worker.

The requirement of voluntariness is absent in certain cases: pregnancy of the woman worker, shift worker. In any case, there is no presumption of voluntariness and shall be tested.

The decrease in performance will be continued, that is, the seriousness of the breach must be checked for their permanence in time, is not sufficient merely a sporadic decrease in performance. The law does not say which is that period of time, become so at the discretion of the judge.

3.6. Habitual drunkenness or drug addiction.

Habitual drunkenness or addiction, if adversely affect the work or the living will be considered breach of contract.

Habitual drunkenness or sporadic is one that is sporadic, this one does not suffice to justify a dismissal, although in some cases suffice drunkenness in the case of drivers, for example, or when the collective agreement is arranged.

The negative impact on the job due to habitual drunkenness or addiction is the decreased performance in the possibility of injury to persons or property, or caused to smear the image of the company. Will the employer must prove that the negative impact on the job, there being no cause for dismissal otherwise.

Chronic alcoholism is not a cause exculpatory liability in the event of intoxication, being attributable to the disease sufferers.

4. Procedure.

Disciplinary dismissal in terms of maximum penalty for a serious breach of contract and guilty, must meet certain requirements to operate in all its virtuality. Otherwise, if contested, it is always possible revision to the employment tribunal, may not achieve its primary purpose: the termination of the employment contract.

4.1. Term.

The deadline for imposing the sanction of dismissal for serious offenses is 60 days from the date the company had conocimientote commission and in any case within six months of being committed. It is a limitation period and the calculation starts from the last commission of the facts, if the missing is made up of several, when the employee ceases the infringement, if the offense is continuing, and when the company full knowledge, full and accurate facts, whether the breach of good faith contractual or breach of trust has occurred so fraudulentao to hide and evade the inspections of the employer.

4.2. Formalities.

Disciplinary dismissal must be notified in writing, which must include the facts that the reasons and the date when it takes effect. Moreover, the dismissal must also comply with any procedural rules established by law or agreement, as the formalities are set to guarantee worker.

When the worker outside the workers’ legal representative or shop steward in which case it is necessary to open the file to be contradictory in the ears, in addition to interest, the remaining members of the representation to strength belongs, if any. And if the worker was a union member, in which case should be heard before the stewards of the local union for the union, but only in the event that the employer will appear or the fact of membership.

The committee and staff representatives are entitled to be informed of any sanctions imposed for very serious offenses. However, the failure to notify the representatives of the workers did not involve the nullity or unfair dismissal.

Breached the applicable requirements of a dismissal, the employer, within 20 days, one can again observe that the requirements are omitted. In such a case should be made available to the worker’s wages for those days in between and keep for the same discharge in Social Security.

4.3. Letter of dismissal.

The dismissal, like all serious and very serious penalties, must be notified in writing to the employee. This letter is known colloquially as “letter of dismissal.” And elle employer must state the facts that the reasons and the date it takes effect. Settled labor law is not necessary a detailed description of events, although it is imperative that the dismissal letter provided to the employee a clear understanding and clear enough of the facts against him, with the object is to allow his defense, and this requirement is not met if the “letter” contains only generic and vague complaints.

4.3.1. Purpose.

The legal requirement of written form, letter of dismissal, is threefold: to present the facts to challenge them, identify the reasons for opposition and establish the factual definition of the dispute, given that you can not rely on different facts at trial .

4.3.2. Acts.

Should be stated in the letter of dismissal the facts justifying the company’s decision to terminate the contract of employment, breaches of contract. Therefore, not simply in vague and abstract citation or the mere transcription of the legal conceptualization of the alleged act.

However, neither requires a narrative or statement of the facts detailed, thorough and detailed, being enough to be collected in sufficient terms to allow the recipient to know about those who give back.

Since labor infractions may be prescribed, it must offer sufficient information letter on the facts and dates of their commission.

The extension of the termination letter is valid provided it takes place before the filing of the application, because the events that make up the extension part of the dispute.

The absence or insufficiency of the facts motivating the helplessness of the worker is laid off by not allowing him to argue and prove sufficiently challenging the allegations against him discharged, or, where appropriate, rely on the limitation of the alleged infringement.

4.3.3. Date.

The dismissal letter must state the date when it takes effect the dismissal to be notified by the notification.

The effects of dismissal occur after delivery of written notice, unless the same is expected later date in which case they produce and from it.

From the effective date of the period begins to run for the claim, which will be 20 working days from the day following that date.

4.3.4. Notice.

For the employer to prove the delivery of the letter of dismissal, or have made the necessary efforts required by good faith, go for a test drive to work.

It is irrelevant mechanical means made for the notification of the letter, as it may be by regular mail, certified mail, return receipt requested, through a notary public, delivery to the worker, the telegram. Therefore, the signature is invalid or unenforceable if the employee communication attached to the letter the character of declaration of will of the employer.

4.3.5. Place.

It is irrelevant where you place the date of notification of dismissal: workplace, worker’s home or elsewhere. Whenever you make or try. Therefore, the letter to the worker’s home is valid but it does not receive it because he changed to another address without notifying the company. Neither personal notification is required in the worker’s home, since it is sufficient delivery to your closest relatives or live together with him.

Moreover, the notice is valid even if it is rejected by the recipient or was not collected in the postal service, with proof of delivery.

4.3.6. Time.

Written communication of dismissal can only be effective if the missing object of this sanction prescribed.

If the dismissal has taken place without the relevant communication or delivered in this failure to comply with formal requirements, leading to the declaration of its illegality, it should make a new dismissal observing the formalities of the 20 days. In this case, be made available to the worker’s wages in the period between the two dismissals, as well as keep the Social Security high on those days.

• effects of redundancy.

Termination of the employment relationship ceases service obligations and remuneration, which is, in turn, that should be removed from the Social Security the worker not to have to continue trading for him.

If the employee was on temporary disability at the time of dismissal, does not lose the right to grant, but the trustee must take your payment.

Termination effects occur after delivery of written notice, unless the same is expected later date, in which case will occur from this.

• Unemployment.

Dismissal from both, as inappropriate and zero lead to the legal situation of unemployment, if the employee has previously claimed against it.

It is accredited for dismissal from extinction by court ruling social order.

In cases of dismissal from the right comes the day after the termination of the waiting period of three months from the date of the court order, provided that the worker has been registered as unemployed within 15 days from the date of notification of the sentence, and the request is made within 15 days from the date of termination of the waiting period.

Extinction is credited for unfair dismissal by:

• administrative conciliation Act, to the SMAC, which recognizes the unfair dismissal and agreed a compensation not less than 35 days’ pay, including pay, regardless of the duration of the contract.

• Minutes of court settlement which recognizes the unfair dismissal.

• Judgement declaring unfair dismissal and accreditation of the employer or the employee when personal representative, has opted for reinstatement.

• definitive judicial resolution declaring the termination of employment: auto fallen on incident are not reinstated if their employer was committed to it and this did not happen, or was irregular.

Extinction is credited pay no final verdict by declaring the termination of employment: auto fallen on the incident are not reinstated when proving the impossibility of such readmission termination or closure of the undertaking required.

In the chaos of unfair dismissal or null, the right to unemployment benefit arises on the day following the legal situation of unemployment, provided that request within 15 days, starting from the same.

Some situations that occurred to friends, relatives, acquaintances or just people outside our life but we know through the media make us think about extreme situations such as a layoff. Such is the case of Valencia Carlos Devis. Last June, a ruling by the Supreme Court of Valencia handed the job. It all started three years ago when Devis received a letter from his company that he was informed of his dismissal due to economic losses of your company. As it was not fair, the victim decided to go to a lawyer and take legal action.

But the first court action stated that the dismissal was “appropriate.” Devis nevertheless decided to appeal this ruling, arguing that the decision of his company had been “inappropriate” because the dismissal was not communicated to the representatives of workers. That’s when the Supreme Court in his favor. “The omission of this requirement (notice of dismissal to the employee representatives) is not a mere breach of a duty to inform the repression of which runs out in an administrative penalty,” said the statement. And so he regained his job.

Cases like this are a reminder that often the relationship between employer and employee reach a point of no return, beyond which the resolution of disputes rests with the lawyers and judges. Thus, to avoid unfair dismissal, it is essential to know the differences between the layoffs coming, null and irrelevant, and the implications of each.

The courts

After the termination of the employment contract is by mutual agreement between the parties, the relevant legislation and the first source of information is the Royal Decree 1 / 1995 of March 24, 1995, which explains the different reasons for termination contract.

There are a total of 12 types of termination of contract under the law, companies generally used as a reference when justifying the dismissal of a worker. The employee may, however, not regarded as fair or justified, so you can try to find a solution within the company or consult a labor lawyer on the matter. The decision to proceed with a trial means to be aware of the judge’s understanding of the social, and here come the different legal terms to classify a dismissal. The judge, after analyzing the characteristics of the case, judging whether dismissal is appropriate, inappropriate or absent.

In the first case (from) the alleged causes are accredited by the company, which the employee may appeal the sentence if it is not a decision of the Supreme Court. In the case of a final decision, the company may proceed with termination of employment without the employee is entitled to compensation or to pay for processing.

Unfair dismissal is an unfair employment discharge. Unfair discharge of employment are also known as illegal downloading, illegal dismissal, unfair dismissal or unfair dismissal.

If an employee has been employed under a fixed term contract the employer has unreasonably terminated prematurely before the deadline has expired, the employee is entitled to file a claim based solely on the fact that termination was in breach of contract.

An employee may file a claim for unfair dismissal, whether in the civil courts and the Supreme Court or county court or an employment tribunal. An employee only has three months to file a claim for unfair dismissal in the Labour Court to six years to bring a claim in court.

The statement of claim is a written statement of the applicant (the employee) that he or she must present his case of unfair dismissal. This statement of claim must be filed with the court. The statement of claim must include the facts that the plaintiff (the worker), established to support your case. The facts are usually numbered paragraphs. Statements of credit are critical documents in the process trace.

Breach of law

Unfair dismissal, on the other hand, occurs when the judge does not accept the non justified in the letter of dismissal, or when the employer fails to meet the formal requirements of dismissal, as in the case of worker above Valencia. In this situation, the Ministry of Labour and Industrial Affairs (MTAS), the employer may refuse to reinstate the employee within five days of sentencing. But you can also choose between reinstatement, after payment of the salary payment processing, and payment of compensation of 45 days salary for each year of service, or an amount equal to the sum of wages that has left to perceive the employee from the date of dismissal until notification of the sentence.

In these cases, the worker must be informed in writing within ten days of notification of the decision, the date to return to work. Similarly, the employer must discharge the worker at Social Security, quoting from the date of dismissal, which is considered a listed occupation.

Discrimination and violation of rights

The last of the alleged dismissal is null, ie when the judge finds that there has been any discrimination to the employee or the violation of their fundamental rights or freedoms. Also cancel the dismissal, according to MTAS, the following assumptions:

• When performed during the period of suspension of employment contract for maternity, risk during pregnancy, adoption or foster care.

• If you are new moms, from the date of commencement of pregnancy to the beginning of the period of suspension of the contract for maternity, risk during pregnancy, adoption or foster care.

• In workers who have requested leave for breast or for reasons of legal guardian, or who are on leave to care for their children.

• When workers are victims of domestic violence through the exercise of the rights to reduce or reorganize their work, geographic mobility, change of workplace or suspension of employment.

The company’s response to the sentence of dismissal must be immediately declared void, the employee will be reinstated in his post and collect the payment of wages has failed to receive due to dismissal, counting from the date hereof and up notification of the sentence. The employer, in this case, is obliged to handle the high position in the Social Security, quoting from the date of dismissal, which is considered a listed occupation.

The statement of claim for unfair dismissal includes the name of the applicant (the employee) and the defendant (the employer) and other relevant data and the start date of the contract and the end date.

If the statement of claim unfair dismissal shows the time, the employee shall be entitled to compensation in the form of monetary compensation. This is based on the salary that the employee has lost as a result of the employer’s breach of contract.

The process of filing a lawsuit related to unfair dismissal is quite long and complex to follow people. This is the reason why most of them back and prefer to stay back rather than get involved themselves with all legal and practical actions that could harm them in the future only by the fact that demand great time and great expense in everything related to the entire application procedure.

The good news is that the process can be easier and easier to have a thorough knowledge of basic legal terms used in these cases as well as checking references and resources of these organizations. Here are some steps or tips that can help people understand the proper way to file a claim:

• First, a personal assessment must be done which basically includes the right of the whole situation from beginning to end. You have to prepare with respect to psychological pressure and hard work they need to put in the times ahead.

• The second would bring all the working papers related, as the letter of offer, the attendance sheet, labor contracts, performance appraisals, recommendations, and anything similar that can help hem prove his innocence in court .

• Then, after the passage of the above, one must look out for an experienced lawyer to handle your case in the coming time. If one manages to get a good lawyer, then half the job is done and the rest is related to the preparation that these employees have to carry within themselves.

wrongful termination is something that points to the illegal or wrongful termination of any employee. The law states that it is strictly illegal and unethical as an employee is dismissed on grounds of sex, age, color, race, creed, nationality or religion.

With regard to age discrimination and unfair dismissal is concerned, is the termination based on the differentiation of the ages. If a person who is suitable enough to profile their work on the basis of experience, performance and qualifications, but still finished only by age, you’re more than an unfair dismissal and age can be considered the discrimination that may be claimed in the court of law.

The U.S. government has passed many laws on age discrimination, such as unfair dismissal in the workplace. An act to help people over age 40 are prohibited from any type of age discrimination. Although there are several cases that keep coming like this, but it is the conscience, and willpower on the worker, as they can easily go to court and get the judiciary informed about such events. Employees must have sufficient evidence to show that such a thing has actually happened and they still are innocent who suffer. If the employee wins, then he or she is entitled to a large sum of money and the company in turn is under penalty for a huge loss.

unfair dismissal is an unfair employment discharge. Unfair discharge of employment are also known as illegal downloading, illegal dismissal, unfair dismissal or unfair dismissal.

If an employee has been employed under a fixed term contract the employer has unreasonably terminated prematurely before the deadline has expired, the employee is entitled to file a claim based solely on the fact that termination was in breach of contract.

An employee may file a claim for unfair dismissal, whether in the civil courts and the Supreme Court or county court or an employment tribunal. An employee only has three months to file a claim for unfair dismissal in the Labour Court to six years to bring a claim in court.

The statement of claim is a written statement of the applicant (the employee) that he or she must present his case of unfair dismissal. This statement of claim must be filed with the court. The statement of claim must include the facts that the plaintiff (the worker), established to support your case. The facts are usually numbered paragraphs. Statements of credit are critical documents in the process trace.

The statement of claim for unfair dismissal includes the name of the applicant (the employee) and the defendant (the employer) and other relevant data and the start date of the contract and the end date.

If the statement of claim unfair dismissal shows the time, the employee shall be entitled to compensation in the form of monetary compensation. This is based on the salary that the employee has lost as a result of the employer’s breach of contract.

unfair dismissal occurs when an employer does not follow fair procedures or there is no adequate reason for dismissal. The worker is entitled to appeal against the dismissals. A dismissal is considered unfair that is:

1.Irrazonables, unfair or harsh

2.Participación in the activities of labor unions

3.Pertenencia a union

4.The pregnancy or adoption of children

5.La a complaint against the employer or participating in proceedings against the employer

6.Temporal for sickness and injury absence

Absence due to illness or injury:

Sickness absence can not be a basis for dismissal. An employee can not legally be dismissed by the employer due to temporary absence from work due to illness or injury. If an employee is dismissed for temporary absence from work due to illness or injury, is seen as unfair dismissal. However, there are some conditions. An employee can not be absent for more