Can they kick me out because of the energy crisis? How is the veto dismissal for the war in Ukraine

Can they kick me out because of the energy crisis?  How is the veto dismissal for the war in Ukraine



The government has once again restricted dismissal by law, this time to try to prevent companies affected by the war in Ukraine from firing their staff due to rising energy costs. The objective is for companies with problems to turn to the star adjustment mechanism of the pandemic: the ERTE. The Council of Ministers has approved this Tuesday a package of public aid to avoid the economic damage of the conflict, in energy, the transport sector and through a new line of ICO credits, among other measures. It has also given the green light to a new veto of objective dismissal.

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The restriction on dismissal approved this Tuesday is not the same as agreed during the COVID pandemic. The Ministry of Labor, led by Vice President Yolanda Díaz, insisted on the need to once again approve a limitation on dismissal so that companies with problems could go back to the ERTE, as happened during the coronavirus crisis. In front was the first vice president, Nadia Calviño, who publicly responded to questions about Labor's claim that the damage caused by the conflict in Ukraine was very different from that of COVID.

Finally, the limitation on dismissal has gone ahead, but it is not as broad as the one approved during the pandemic, since the situation and the economic damage caused by the Russian invasion of Ukraine are different. With COVID, the entire country came to a standstill and there were direct restrictions on many sectors, which had capacity limitations or even a ban on their activity. At the moment, the damage is more localized, with a large increase in energy prices and the difficulty of supplying certain raw materials, which has caused the Government to tighten its veto on dismissals due to the war.

"I am sending a clear message to businessmen", said Vice President Yolanda Díaz after the Council of Ministers. “When there are social protection mechanisms there is no need to fire. We have already done it, I ask you to do it again”.

What layoffs are prohibited?

The Government legislates that the beneficiary companies of the direct aid approved this Tuesday will not be able to objectively fire their workers due to the increase in energy costs until June 30, 2022. In addition, companies that take advantage of an ERTE for reasons related to the invasion of Ukraine, for example due to lack of supplies, they will also not be able to use these causes to carry out objective dismissals of their personnel.

These reasons will not justify objective dismissals, which have compensation of 20 days per year worked.

What public aid prevents dismissal?

All kinds of direct aid included in the package of measures approved this Tuesday, according to government sources. It is expected to cover a large number of companies, since the decree contains a wide range of direct aid, both a new line of ICO credits, as well as direct aid for fuel, industry, transport and the agricultural sector, among others. others.

These companies can not make any dismissal?

Yes, some do. As happened in the pandemic, the Government regulates that these companies cannot justify objective dismissal for certain reasons. In this case, for the economic damage of the war in Ukraine. But the companies that benefit from public aid for this crisis and/or that apply ERTE are still able to fire for other reasons.

For example, disciplinary dismissals in the event of serious misconduct by a worker or objective dismissals for reasons other than the invasion of Ukraine, such as "worker ineptitude" and "lack of adaptation of the worker to the technical changes made in his position of work" that are included in the Workers' Statute, among others.

What happens if a company lays off for the war?

It is usually called "prohibition" of objective dismissal, although jurists are very suspicious of this term and are more inclined to the terms "veto" or "restriction" to dismissal because in practice these can occur. What the Government has done is to establish that the damage caused by the war does not justify an objective dismissal, but the companies (in practice) can execute it. Of course, they have to face the consequences for this, which would significantly affect their pocket.

The Executive has established that companies that benefit from public aid, in case of dismissing their staff due to the war, must return the aid received. But, in addition, the person affected by the dismissal can sue the company in court to appeal the dismissal.

While waiting for the fine print of the decree, the justice system could declare the dismissal unfair, with the obligation of the company to reinstate the worker in his position or to pay compensation equivalent to 33 days of salary per year worked; or null, for which the worker should be reinstated. In any case, the company should pay the wages not received during the months in which the affected person was out of his position in an abusive manner.

What happens with temporary contracts?

In companies covered by the veto on objective dismissal, temporary contracts can be terminated when the cause that justifies them ends. If this happens in the next three months, until June 30, too. There are no changes in this regard. The compensation to be paid to workers reaches 12 days per year worked in this case (or the proportional part in case of having worked less).

Of course, in the event that the company terminates a temporary contract due to the war, and not due to the end of the reasons that motivated the contract, the affected person could appeal the dismissal in court, recalls the Labor Law professor Adrián Todolí . In that case, if it is declared that there has been an unfair dismissal, the compensation would be much higher: 33 days per year worked.

In the pandemic the dismissal veto was also expressly deployed for the termination of temporary contracts. The Government established that the objective causes linked to the pandemic “cannot be understood as justifications for the termination of the employment contract or the dismissal”, but on this occasion this provision is not included. Now, the new labor reform that limits the use of temporary contracts is in force, already with the new contract modalities in force since March 31. Temporary contracts signed before this date can continue in these situationsas long as their cause is upheld.



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