September 28, 2020

the labor doubts on the veto to the dismissals and the extinction of storms



Government has temporarily banned that companies dismiss their workers for objective reasons due to the coronavirus crisis. The measure takes effect this Saturday and is effective for the duration of the alarm state. Does that mean that there will no longer be layoffs? It may not and, surely, in some cases there are companies that continue to fire their workers, but the consequences of these layoffs do change because the Executive considers it illegal to fire in these circumstances.

Below, we try to resolve some of the doubts that have arisen regarding this royal decree law (whose keys are summarized here), which seeks to prevent dismissals during the health emergency with the assessment of various specialists in labor law.

Has the government banned firing?

Yes, the Government states that companies cannot fire in certain circumstances during the state of alarm. It considers that the dismissals due to “force majeure and the economic, technical, organizational and production causes” linked to the coronavirus crisis are not justified, giving access to the approved benefits for ERTE (temporary records of employment regulation). These causes do not lead to objective dismissals, which have compensation of 20 days per year worked.

The term “prohibit” is not the one that jurists like the most, recognizes Professor of Labor and Social Security law Adrián Todolí, who with the precision required of them usually refers to the fact that “it is not lawful to dismiss for these causes” . “What the government is saying is that these dismissals are not justified during the state of alarm,” summarizes the specialist.

So companies can’t kick anyone out?

They cannot fire a worker for any of these objective causes mentioned due to the coronavirus crisis. They can’t kick you out with 20 days’ compensation per work year, if that’s what they wanted.

However, Adrián Todolí recalls that “our labor relations system is based on free dismissal, but compensated. Companies will be able to continue firing, but the consequence of the dismissal is different. It will be considered at least as a dismissal not adjusted to law , in which there is no cause and the compensation for an unfair dismissal would have to be paid. “

This is also the opinion of the professor of labor law Ana Belén Muñoz: “It should be understood that the general rule of compensation for unfair dismissal of 33 days per year, with a limit of 24 monthly payments of article 56 of the Statute of Workers” would apply.

Is there an objective layoff that can be done?

Yes, it is still possible to fire workers for objective causes when they have nothing to do with the coronavirus. In addition, some objective causes, such as “worker ineptitude” and “lack of adaptation of the worker to the technical modifications carried out in his workplace”, may continue to cause dismissals during the state of alarm.

On the other hand, it is also still possible to dismiss a worker in a disciplinary manner for “a serious and guilty breach of the worker”. This dismissal does not generate a right to compensation for the employee.

What if I am irregularly fired for COVID-19?

Suppose that, despite the agreement of the Government, a company unlawfully dismisses its workers. Although the real cause of the dismissal is one of the objectives mentioned (force majeure and the economic, technical, organizational and production causes) due to the coronavirus, the employer dismisses a worker alleging a disciplinary dismissal or other false causes.

In that case, the worker has the option of going to court to challenge his dismissal. Given the wording of the decree, in the opinion of the experts consulted, the judge will consider the dismissal as inadmissible. The consequences of an unfair dismissal are the company’s obligation to reinstate the worker to his position or to pay him compensation equivalent to 33 days of salary per year worked.

“It would have been desirable for the rule to reinforce the position of the worker by clearly establishing the consequence of the nullity of the dismissal for these cases,” says Professor Muñoz. The null dismissal has the effect of the immediate reinstatement of the worker, with payment of the wages not received since he left his post.

What about temporary contracts?

The decree establishes that the objective causes mentioned linked to the pandemic “cannot be understood as justification for the termination of the employment contract or dismissal.” Thus, the specialists consulted emphasize that companies cannot terminate temporary contracts prematurely for these reasons. “In reality it was not possible before, but here the Government makes it clear,” says Todolí.

Therefore, “if the termination of the contract was subsequent to the state of alarm, the temporary contract must continue, but if it ended during this, it can be terminated,” continues the teacher. Professor Ana Belén Muñoz is of the same opinion: “If the contract was subject to a term (eventual contract) and this term expires, the termination seems justified.”

What if the company, despite everything, terminates my contract?

The worker may appeal in court to have the termination recognized as an unfair dismissal. In any case, remembers Adrián Todolí, there are numerous fraudulent temporary contracts, which are not really motivated by the cause that appears on paper, and in these cases you can also claim for unfair dismissal.

Are temporary contracts in ERTEs interrupted?

Yes, the Government has ordered the “interruption of the calculation of the maximum duration of temporary contracts”. The suspension of the temporary contracts of workers included in ERTE by COVID-19 (including training, relief and interim contracts) “will suppose the interruption of the computation, both of the duration of these contracts, and of the reference periods equivalent to the suspended period. ” Thus, when the ERTEs are concluded, these temporary contracts are resumed without consuming the time during which the file has been lengthened.

Professor of labor law Ignasi Beltrán values ​​in your blog that this is “an important measure of employment protection, although it may pose some ‘mismatches’ in those situations in which the object of the contract can no longer be fulfilled”. The specialist also recalls that companies that use ERTE for the coronavirus are subject to an employment maintenance clause for the following six months, which “could define a complex management scenario” in this sense.

I was kicked out by COVID-19 before the decree, is it legal?

The prohibition of dismissals and termination of contracts due to objective causes due to the coronavirus comes into force this Saturday and has no retroactive effect on dismissals motivated by Covi-19 before this March 28. Therefore, if a company correctly justified the dismissal, it is legal.

In the case of temporary contracts, Adrián Todolí specifies that “the termination before the established time of a temporary contract had already been recognized as unfair dismissal”, so the person affected could challenge it in court.

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