The telephone service giant Atento has fired a worker on Tuesday, the president of the company committee of her center in Lleida and the UGT union, for what is known as 'dismissal for absenteeism', due to 18 absences in two consecutive months, all justified by medical leave. How has advanced La Vanguardia, the multinational has thrown out the unionist under article 52 d) of the Workers' Statute, only a few days after the Constitutional Court will endorse this route of objective dismissal, hardened in the labor reforms of 2010 and 2012.
As explained by the dismissal letter dated November 5 – to which eldiario.es has had access -, the employee missed work in three periods (from March 11 to 14, March 15 and from 2 to 18 April) fully justified by medical leave of temporary disability. In total, 18 days in two consecutive months.
Article 52 d) of the Workers' Statute allows the objective dismissal – with compensation of 20 days per year worked – for intermittent absences of the worker, even if justified, when they reach "20% of the working days in two consecutive months "and" provided that the total number of absences in the previous twelve months reaches 5% of the working days ", or when they represent" 25% in four discontinuous months within a twelve month period ".
Attentive grabs the first of the assumptions. Since the number of business days in those two months is 42 days, the percentage of absences reaches 42.86% in that period. In addition, in the previous twelve months those 18 days of leave represent 7.23% of the working days, which has served to justify the objective dismissal for absenteeism.
We must remember that the legislation includes exceptions in which absences are not taken into account in the face of this calculation, such as absences due to "serious illness" or cancer treatment. Yes, other short and intermittent medical leave is included, as in this dismissal.
Attentive: "It is one more case of objective dismissal"
Atento sources defend the termination of the employment contract as a "procedure used to combat high absenteeism regardless of the condition of the worker." The multinational "believes it is another case of objective dismissal," they add.
UGT has publicly denounced the dismissal as "a very clear situation of union persecution", which they will appeal to the courts. In addition, beyond this specific case, the union criticizes the use of this dismissal formula to dispense with workers who are absent for having been ill, explains Monika Benito, Secretary of Organization of the Federation of Services, Mobility and Consumption of UGT in Catalonia.
"In fact, the worker finds out about her dismissal when she was serving union hours advising an affiliate of ours who had also been fired for the same reason, because of absenteeism," says Benito. Although this dismissal formula has not been widely used to date, according to the unions and labor lawyers contacted, the UGT representative warns that Atento "is applying it, not in a massive way, but is applying it."
The state addresses of UGT and CCOO announced this Tuesday its joint strategy against dismissal for absenteeism endorsed by the Constitutional Court only a few days ago. The unions crossed out the sentence of "a recklessness" for the health risk to which it exposes workers, who may end up going to work sick to avoid being fired.
The leaders of both organizations, Pepe Álvarez and Unai Sordo, have warned that they will publicly signal to companies that use this form of dismissal and that they will fight the cases of those who have evidence in court. UGT and CCOO consider that there are still reasons to cancel the precept for unconstitutional, beyond those analyzed by the Plenary in its recent ruling.
Deaf warned of the fear of the unions that, after the support of the Constitutional, there is a "contagion effect" and multiply this type of layoffs. Both unions also called on political parties to position themselves on this article of the Workers' Statute for the elections on November 10 and demanded the urgent repeal of the labor reform.
. (tagsToTranslate) Attentive (t) trade unionist (t) absences (t) Constitutional sentence (t)