Before disciplining or dismissing
Human relationships bring a lot of joy, but also conflict. Working relationships are no different. Choosing each person carefully, looking after the relationship and having a good contract greatly reduce problems, but they do not avoid them altogether. When they arise, what you do in the first few days often decides the outcome.
Before you act, you should bear three things in mind:
- The evidence. Anything you cannot prove in court, such as witnesses, documents, records or messages, will hardly justify a disciplinary measure or a dismissal.
- The collective agreement. It usually classifies offences as minor, serious and very serious and sets the penalty for each. The law prohibits some penalties, such as fining the employee by deducting pay or cutting their holidays.
- The deadlines. Offences become time-barred: the business loses the ability to discipline them if it lets the period set in article 60 of the Estatuto de los Trabajadores (Workers’ Statute) pass from when it became aware of them. Waiting too long can cancel out a justified penalty.
Disciplinary dismissal: substance and form
A disciplinary dismissal (despido disciplinario) is one decided by the employer because of a serious and culpable breach by the employee. Article 54 of the Workers’ Statute lists the grounds: repeated and unjustified absence or lateness, indiscipline or disobedience, verbal or physical abuse, breach of trust, a continued and deliberate drop in performance, drunkenness or drug addiction affecting work, and harassment, among others.
Form is as important as substance. The dismissal must be notified in writing in a letter that sets out the facts in detail and the date on which it takes effect. If the employee is a staff representative, you must first open a formal disciplinary file (expediente contradictorio), giving them the chance to defend themselves. If they belong to a trade union and the business knows it, the union representatives must be heard first.
Then, if the employee challenges it, a judge can classify the dismissal in three ways:
- Fair (procedente): the facts are proved and the formalities were met. The dismissal stands, with no compensation.
- Unfair (improcedente): the facts are not proved or the formalities fail. In general, the business chooses between reinstating the employee or paying the statutory compensation, which depends on their length of service and salary.
- Void (nulo): if it breaches fundamental rights or affects specially protected situations, such as pregnancy or certain types of leave. The business must reinstate the employee and pay the wages they lost.
When it is the employee who makes a claim
A dismissed employee has twenty working days to challenge the dismissal. Before going to court, in most cases they must file a conciliation request (papeleta de conciliación) with the relevant administrative service, which in Andalucía is run by the Junta de Andalucía (the regional government). That hearing is a good opportunity to reach an agreement with legal certainty.
Other common disputes are claims for overtime or pay differences, changes in working hours or duties, sick leave or harassment complaints. In all of them I recommend mediation and negotiation, while being ready for any scenario, from the first meeting with the employee’s lawyer through to the trial.
The best way to reduce disputes is to start well. See how I approach contracts with employees, or explain your case to me in a video call.