Dismissal is established as the decision of the boss, employer or employer to terminate the employment relationship between him and the employee.
This dismissal can be categorized according to some characteristics:
- Disciplinary dismissal: When the employee has committed a serious offense at work.
- Objective dismissal: When the employer decides to terminate the employment relationship and resolves the worker's contract and justifies the dismissal with a series of causes that are objective.
- Collective dismissal: When the objective dismissal affects a large number of people who belong to the same company.
- Unfair dismissal: When the employer does not demonstrate labor breach on the part of the employee, in other words, the formal requirements to dismiss him are not met.
Below we will show you in detail each one and its characteristics as well as examples so that you can differentiate and understand them better.
DISCIPLINARY DISMISSAL:
This type of dismissal is when the employer, due to an unjustifiable or serious breach, makes the decision to terminate the employment relationship between the two.
According to post 54 of the employees' statute, the following actions are called serious labor infractions:
1. Frequent unexcused absences, such as being late for work.
2. Indiscipline at work and non-compliance with labor regulations.
3. Physical or verbal violence against the employer or any person who works with him, as well as the relatives with whom he lives.
4. When there is abuse of trust by the employee towards the employer.
5. Failure to comply with the work agreed upon at the time of being hired or that its performance continually decreases.
6. Consumption of alcohol or drugs and that consequently affect the work of the labor worker.
7. Sexual harassment of workers or employer and discrimination based on race, sexual orientation, age, religion, among others, against anyone who works with him.
Disciplinary dismissal letter example.
Luis works in a restaurant. Less than a month ago you had a conflict with one of your co-workers; For this reason, a sanction was applied to Luis where it was specified that he committed a serious offense, he was suspended from work for 10 days without pay. But a week ago the scene was repeated with another colleague, but this time he went further and hit him. For this reason, the company decides to opt for the disciplinary dismissal applied to Luis for having physically assaulted a co-worker.
But this does not end here, because this type of collective agreements They always have a chapter where it is assigned to misconduct and its corresponding sanctions and where, in the case of misconduct that are very serious, they can be sanctioned with the disciplinary dismissal of the employee.
East type of disciplinary dismissalIt can also be considered appropriate, inadmissible or void.
- Dismissal. When the causes or justifications mentioned in the dismissal letter are fully demonstrated. At the same time that the employer will not have to pay any type of compensation to his former worker.
- Unjustified dismissal. When the causes indicated in the dismissal letter cannot be proven at the same time as not having fulfilled the requirements formally demanded by the legislation. In this case, the employer must choose between returning the work to his worker or compensating him, if he opts for the latter, he must pay him 33 days of salary per year he has worked, with a limit of 24 monthly payments.
- Void dismissal. When there is discrimination of any kind, for example: dismissal for practicing a different religion, sexual preference, skin color or appearance in general. The employee must be reinstated, placing him in the same position where he worked, at the same time as paying him the salary that he had stopped receiving since the day he was fired.
OBJECTIVE DISMISSAL.
It is the type of dismissal for which the employment contract is terminated for reasons of economy or organization or production techniques by the company.
These causes are established in post 52 of the ET.
Example of an objective letter of completion.
Laura worked in a textile manufacturing company, but on June 11 her contract ended due to objective dismissal, and in this circumstance she was awarded a letter, in which the company alleged economic causes, given that said company had been going through a phase of continuous losses for some time. 5 years. years.
In the same way as unfair dismissal, objectively dismissal may be appropriate, unfair or void, if the employee requests help from the judicial means to challenge.
This type of dismissal is entitled to a compensation of 20 days of salary per year that is worked for the company with a maximum of 12 monthly payments.
COLLECTIVE DISMISSAL.
This type of dismissal is carried out when the collective dismissal begins and affects a considerable number of employees who work in the same company.
Collective dismissal is contemplated when:
- 10 employees are laid off from the same company that has a total of 100 employees.
- 10% of the total number of employees working in the same company that has a number of workers between 100 and 300 workers.
- 30 employees in the case of companies that have more than 300 employees working for them.
In the same way as the objective dismissal, in the case of collective dismissal, you must compensate with a minimum of 20 days of your salary for one year of work in the company with a limit of 12 months.
The challenge of dismissals, inadmissible or null.
In the event that the worker is not satisfied with the dismissal that was applied to him by the company where he worked, what he must do is file a legal challenge, but this must be done within 20 business days, said challenge is carried out . through the conciliation ballot.
After the challenge, the judge is in charge of declaring the dismissal as appropriate, inadmissible or void. If it is declared admissible, it means that the company has complied with all the legal requirements to justify the dismissal due to internal problems.
After being fired, is it feasible to have access to unemployment?
Regardless of the case of dismissal (disciplinary, objective or objective) the worker is legally unemployed and therefore you can request the unemployment benefits provided and therefore, you have the full right to request the unemployment benefits that correspond to you with respect to the contributions you have accumulated.
At the time of requesting unemployment, The dismissal must be accredited through the company certificate. If the worker files a claim for dismissal, he will be credited with the act of conciliation, whether administrative or judicial, in the same way that he can with the court ruling in which the declaration of timely or unfair dismissal was made.
If the dismissal is unfair, it will be necessary to show that the employer or employee is not eligible for reinstatement.
UNFAIR DISMISSAL.
There are 2 causes that make the declaration of inadmissibility in a dismissal:
1. The formal requirements required by law were not met for any reason.
2. The justifications given by the employer do not legally justify the dismissal, which they call "material reason for dismissal".
Below we list the general requirements that a dismissal must have, whatever its type:
- The employee must always be informed in writing of the company's decision not to continue hiring him and it is an unavoidable requirement.
- Explain the reasons and the facts of the breaches that are awarded to the employee, if it is the case of disciplinary dismissal; or if it is due to objective dismissal, the causes that motivated the decision to terminate the employees under their charge must be clarified.
- The date on which the dismissal will take effect must be specified, which apparently should not coincide with the date on which the decision to dispense with their services was communicated. As an example, the worker can be informed a couple of months in advance before the dismissal deadline.
- Contradictory files should not be processed in the case of disciplinary dismissals of workers' representatives or staff delegates, as well as for not listening to the affected worker, or to the members that make up their union. Regardless of whether it is the shop steward and the company was aware of this status of the employee.
Failure to comply with any of these formal requirements will lead to the dismissal as inadmissible.
Is essential emphasize that the employer is the one who is obliged to prove the causes that were reflected in the dismissal letter.
Regardless of whether the formal requirements are met, the extinct resolution will be deemed inadmissible if the worker does not provide adequate justification for the reason for dismissal.
