Workers are covered in situations of leave (the benefit for temporary disability, recognized by Social Security), but they are not exempt from the fact that, during the period of such leave, they may suffer a dismissal by their company.
That the worker is not free to be fired while on leave does not mean that the leave can be a reason for dismissal: In these cases it is absolutely forbidden for the company to terminate the contract and, if this happens, the worker has all the right to win in a lawsuit.
However, there are situations in which it is possible to fire a worker if he is on leave. It can only be dealt with through a disciplinary dismissal, recognized in the Workers’ Statute (Article 54) and that brings together the dismissals that are based on a “serious and culpable non-compliance” of the worker.
Specifically, it is the assumption that contemplates “the transgression of contractual good faith“, under which there is room for those cases in which the worker exaggerates or pretends an ailment that causes the loss of his position.
The labor guide from the Ministry of Labor explains that the company has up to 60 days (counting from the date it has evidence of this breach) to notify the worker of the dismissal. This, in turn, has 20 days to act against this dismissal. However, if the worker is a union or worker representative, a contradictory file must be opened in which ‘the other party’ is given a voice.
If he considers that the dismissal is not appropriate, the worker may appeal the decision before the Social Court, which must decide whether the dismissal of the company is appropriate, null or inappropriate.
-In the case of being coming, the worker will be without the right to compensation or processing wages.
-In the case of being null, the worker will be immediately reinstated in the position he previously held and will be paid back wages and he will be discharged from Social Security including the period in which he was not working.
-In the case of being unfair, the employer must choose between reinstating the worker (with payment of back wages) or paying the corresponding compensation, which is 33 days per year up to a maximum of 24 monthly payments in contracts signed as of February 12, 2012.
What to do if we are notified of a dismissal while on leave
The situation for the worker when he receives the communication from his company informing of a disciplinary dismissal is complicated, and more if it is in a period of absence. From the specialized law firm Campmany Attorneys it is recommended, first of all, sign the papers as “not compliant” and thus be able to appeal the decision in court.
That does not mean that the worker has the right to claim “the settlement and the corresponding compensation,” the firm’s specialists report.