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Being fired is one of the most common workplace fears. Not having a steady income becomes an obstacle to being able to survive and fulfill long-term projects. However, there are times when employers must do without their workers for different circumstances, which is why there are justified dismissals, unjustified dismissals, or null dismissals, to name just a few. Learn about all types of dismissals, their characteristics, and the measures you should take in case it happens to you.
In general terms, we could describe a dismissal as the unilateral action taken by an employer through which they remove a person from their position permanently. When this situation occurs, the employee receives compensation, which is calculated depending on the time worked, the position, and the salary.
There are several types of dismissals and depending on how the circumstances develop, the employee may take legal measures that allow them to demonstrate that it was without just cause, or if it is with just cause they must also assume the consequences. These are, broadly speaking, the types of dismissals.
What is a dismissal...?
What is a valid dismissal:
A dismissal in this category is one that occurs with just cause, that is, the employer has reasons that demonstrate why a worker should leave their position. Valid dismissals can be classified into two subgroups.
On one hand there are disciplinary dismissals. What is a disciplinary dismissal?, these are those that include serious misconduct such as unjustified absences or recurring tardiness, physical or verbal offenses to a coworker or supervisor or even sexual harassment or discrimination not only in the workplace but also on grounds of race, sex, religion, sexual orientation, etc. It is also considered a disciplinary dismissal for poor job performance, abuse of trust, document falsification, arriving at work in a state of intoxication or under the influence of psychoactive substances, or violating company policies and regulations.
In addition to disciplinary dismissals, collective dismissals are also considered valid. What is a collective dismissal? This type of dismissal occurs when a group of workers must leave the company and generally happens due to economic, restructuring, or production reasons. For an employer to carry out a collective dismissal, they must take into account the number of workers, as depending on the number they may dismiss a certain percentage.
This decision should be guided by an internal company team so that the process is carried out correctly. After the decision is made, the employer must notify their workers about what happened and of course, this type of situation gives rise to compensation, since the dismissal is not due to disciplinary misconduct.
With this type of dismissal, there is usually advance notice so that the worker has time to seek new job opportunities.
Regardless of the origin of the dismissal (collective or disciplinary), there is a process that must be followed for it to be legal. For example, the worker must receive official notification from the company indicating the reason for their dismissal and the date they must leave their position, and in case it is a disciplinary dismissal, there must be evidence demonstrating the misconduct. The employee's response must be received and the corresponding compensation must be processed.
What is an invalid dismissal:
Also considered as a dismissal without just cause. It occurs when the employer does not have reasons to ask one of their workers to leave their position. When such a dismissal occurs, the employee can resort to legal remedies to assert their rights.
Although the reasons for an invalid dismissal can be diverse, one of the most common is associated with physical injury. This is evident when an employee suffers a fall and must be absent for a long period from the company and upon returning they have decided to dismiss them.
Another very common case is due to pregnancy. When a woman tells her employer that she is pregnant, they may decide to dismiss her because of everything it entails in relation to work absences, leave, and monetary compensation. Of course, women have legal protection that allows them to continue with their work without any problems, as being pregnant should not be an impediment.
Another example of a dismissal without just cause is when a contract is signed and parameters are established regarding duration, hours, salary, etc., the two parties generally commit to maintaining these conditions for a previously established period. That is why, if the employer decides to terminate the contract without just cause, the employee has the right to compensation for damages that this decision may cause.
Other situations that are part of this category are those related to worker's rights, for example requesting permission for medical appointments or to resolve a family problem, even being part of a union or claiming payment of overtime hours when applicable. There are more serious facts such as the employer requiring the worker to commit a crime to benefit the company or a client and due to the employee's refusal, they are dismissed. At Conexión Legal we offer free legal advice for cases of unjustified dismissal; contact us through this channel via the WhatsApp icon or by Scheduling Your Consultation and explore solution alternatives for your case.
What is a null dismissal:
A dismissal is considered null when it can be demonstrated that it occurs on grounds of discrimination of any kind, whether based on gender, religion, race, nationality, among others. Likewise, a dismissal is null when it violates the worker's public rights and freedoms. This includes dismissal due to paternity, high-risk pregnancy, adoption, illnesses caused by or during pregnancy, or risk during breastfeeding.
It is also considered null the dismissal of a worker who has requested permanent leave or reduction in their working hours to care for a child or whose partner is hospitalized or in serious health condition. This type of dismissal covers other freedoms such as the right to strike, for which dismissing an employee for this reason will be null.
A null dismissal is characterized by immediate reinstatement that the company must make as soon as it is demonstrated that the conditions under which it occurred are not valid, the worker must also be paid the corresponding salary from their dismissal until their rehiring.
As there may be cases in which workers must resort to legal remedies to demonstrate that their dismissal is invalid and therefore they should receive compensation or reinstatement to their duties, the best alternative is to have advice from a lawyer expert in labor law so that the process is successful.
Remember that after suffering an unjustified dismissal you may be entitled to payment for damages and losses, payment for unpaid salaries, travel allowances, or unreceived medical services.
Contact our employment dismissal lawyer and receive advice on how to resolve your case.
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