a complete guide to understanding them

Brief explanation of the concept of dismissal

Section  4 of the Workers’ Statute states that a dismissal is the forced termination of a worker’s contract when the employment relationship has not yet ended.

There are three types of dismissal: disciplinary, objective and collective. In addition, each case can be classified as justified  , unjustified or null.

What is a justified and unjustified dismissal?

Dismissals are legal procedures where the company has to demonstrate the objective causes that led to the termination of an employee’s contract.

When the employee commits a verifiable fault, we speak of a justified dismissal. Whereas if the dismissal is not due to a just and legal cause, it would be unjustified. Depending on the case, certain severance payments are established.

Disciplinary dismissal

Article  54 of the Workers’ Statute indicates that  disciplinary dismissal is generated by a serious breach or non-compliance with the contract. Here are some examples:

1. Repeated unjustified absences
2. Indiscipline or disobedience at work
3. Verbal insults to coworkers
4. Breach of trust in the performance of work
5. Continued, serious and voluntary decrease in agreed work performance
6. Habitual drunkenness or drug addiction that negatively impacts work
7. Harassment of colleagues due to race, religion, disability, age or sexual orientation
8. Sexual harassment of people working in the company

In these types of dismissals, a notice period is not required. Upon  south africa email list receiving the dismissal letter, the employee must leave the workplace immediately without the right to compensation.

Employee rights in case of disciplinary dismissal

After receiving the dismissal letter, the employee has the right to differences between leasing and renting: learn about the types of financing challenge the dismissal through legal means. In this regard, employers sms To data must prove in a conclusive manner that the person committed the alleged offense.

Although the employee will not be entitled to receive compensation, he or she must be paid the amount of outstanding salary, unpaid vacation or any other benefit to which he or she is entitled.

Objective dismissal

The characteristics of objective dismissal are specified in  Article 52 of the Workers’ Statute . The employer must allege that the dismissal is due to one of the following legal conditions:

• The worker has not been able to adapt to his responsibilities or does not have sufficient skills to do his job.
• Organizational, technical, economic or production reasons that lead the company to reduce its staff.

Employee rights in the event of objective dismissal

Contrary to the previous case, if an employee is dismissed objectively, he must receive compensation of 20 days’ salary per year of service. Other rights specified in  Article 53 are:

• The employee must receive a dismissal letter stating the reason for the termination of the contract.
• The employee is entitled to a 15-day notice period starting from the moment he or she receives the letter.
• The worker has the right to a 6-hour weekly leave to look for a new job.
• Every worker has the right to challenge the dismissal based on the reasons stated in the letter and to have legal representation.
• Finally, the employee may apply for a company certificate and receive unemployment benefits.

Collective dismissal

Article  51 of the Workers’ Statute defines collective dismissal as one in which the contracts of several employees are terminated within a period of 90 days. This type of dismissal can only be justified by alleging economic, technical, organizational or production reasons.

According to the law, the following criteria apply to these types of dismissals to determine whether they can be considered collective, depending on the number of people affected:

• Ten workers, in companies that employ less than one hundred workers.
• Ten percent of the number of employees in companies with between one hundred and three hundred employees on staff.
• Thirty workers in companies with more than three hundred workers.

The company must inform the Labour and Social Security Inspectorate that it faces any of the objective reasons mentioned above and is forced to reduce its workforce. The inspectorate will submit a report on the existence of the specified reasons, granting or denying permission to continue with the procedure.

Workers’ rights in the event of collective dismissal

In such cases, workers are entitled to compensation and have the right to consult with workers’ representatives.

It should be noted that collective dismissals must be subject to advance notice according to the contractual agreement and the company must specify the reason for the termination of the contract. The law establishes that the employer must:

• Indicate the number and professional classification of the workers who will be dismissed.
• Specify the period planned for carrying out the dismissals.
• Explain the criteria used to select the affected workers.
• Provide a copy of the communication addressed to workers or their representatives.
• Identify the workers’ representatives who will make up the negotiating committee.

Legal consequences for the company

It is important to note that companies have the right to implement these types of dismissals, as long as the cause initially argued is valid.

Failure to do so may result in administrative and legal consequences for the company. Failure to comply with the legal procedure may result in fines or the obligation to pay damages to employees.

Unfair dismissal

When the reasons for a dismissal cannot be proven in court, then it is called an unfair dismissal ( Article 56 ). When the verdict is known, the company is obliged to reinstate the worker or give him compensation of 33 days for each year worked (previously 45 days of salary for each year of service were applied).

If the reinstatement option is chosen, the company is obliged to pay the employee for the time he was not at work. In addition, the employee must return the compensation he received when he was dismissed.