When a person makes a labor agreement, they must comply with the instructions of the employer; otherwise he will be exposed to a dismissal for absenteeism, it is necessary to know different points that will be detailed in this article.
The consequences generated by the breach of the employment contract by the employee.
Dismissal for absenteeism
Absenteeism can be understood as the absence or abandonment of the position and its professional functions that it performs in a company or association on a working day, violating the legal contract established at the time of entering the firm. This absence may or may not be justified; Otherwise, it is unjustified labor abandonment that can generate the dismissal for absenteeism.
Labor dismissal refers to when the employer cuts a work agreement with his employee for reasons of a labor nature, whether due to the accumulation of justified absences in the month, due to unjustified absenteeism or serious failures within the company. The employer having the power to decide the duration of his worker's contract through legal channels.
If the measure is taken because it indirectly damages or harms the workplace or the environment among the rest of the staff. In Spain, according to the royal regulation of workers, two types of dismissal can be applied according to article 49: Objective, for reasons beyond the employee's control, for which he is entitled to 20 days for each year of work with a maximum of 12 salaries and demand a notice of 15 days.
Collective, produced by a serious and culpable conduct of the contracted party, does not require compensation for loss of the contract or prior notice; Disciplinary, the company wishes to cancel the contract but there are no causes, it is advisable to reach conciliation and verbally expose the termination of the contract.
Within a company there are different departments which fulfill specific functions.
such as human resources, to learn a little more about these divisions we recommend reading about departments of a company.
requirements reflect the work absenteeism
Within the requirements to be able to proceed with a dismissal for absenteeism, it refers to compliance within the legal framework. In Spain, it has been modified over the years giving flexibility and benefit to the employee, but it does not escape from an article where the presence of the worker within the company is not justified, the following can be detailed:
- When the dismissal for absenteeism disturbs the working day because it is carried out in a team effort.
- Absenteeism is generated consecutively and the reason is not justified or is consecutive during a period of one month causing damage within the company.
- When referring to the work absence of the month, it is not said exclusively from 01 to 30 of each period, it can also refer, for example, from August 20 to September 20; Within that period, the number of excused or unexcused absences can be counted.
- The employee must have the weekly average of hours worked, according to article 52 of the year 2020 of the RDL, for absences from work, even justified but discontinuous.
- Achieve 20% of the working hours in two successive months provided that the total number of attendance failures in the previous twelfth months exceeds 5% of the working hours, or 25% in four discontinuous periods within a period of twelve months.
- As absence from work do not include those referring to permits or rest generated by maternity, problems within pregnancy, lactation, some danger generated by pregnancy, childbirth, vacations, licenses; accidents during working hours; legal strike.
- Relapse of any disease in the case of being less than 20 business days; illnesses greater than 20 business days; problems of gender violence justified by care of social services or health services; treatment of diseases such as diabetes, cancer, among others.
In the statute of the workers of the Spanish nation
That was approved by the Royal Legislative Decree of the year 1995, article 24.1 where it refers that the employer has the right to contact the state of the illness, situation or accident in order to justify and guarantee the absence from work. Chapter 54.1 dictates that the labor agreement will culminate by decree of the owner, through some dismissal based on a serious and culpable infraction of the employee.
Employer obligations
Within the labor agreement there are the rights that the worker enjoys in the company, where the obligations that the contracting party has towards his contracted parties are referred to; and within these obligations are detailed below:
Proof of completion of work
In all cases of termination of employment, the company has the obligation to make the termination reference of the contract; If the case refers to a dismissal, the reasons that originated this termination of the contract must be specified, detailing all the absences that generated the decision by the employer.
Cancellation of social benefits
Likewise, the social benefits that belong to him in terms of his salary and working time must be delivered, in accordance with the provisions of the Royal Legislative Decree 20 days for each year worked. This payment must be executed at the time of dismissal, in the case of not complying at the time of payment, this dismissal will be improper, therefore it has no legal validity for the employee, being able to continue with their functions and be covered by the legal framework of workers. .
Deadline for dismissal
Finally, the notification must be made in order to be able to notify 15 days in advance of the date, of the effects of the measure taken, being completely different, it must be accredited at the end. The absence of this benefit does not make the dismissal inadmissible, but it does allow the employee to demand the absence of prior notice with the term; In the absence of this indication of the business term in accordance with article 59.2, the term to proceed with the withdrawal will be one year from the date of the last attendance registered in the company.
Worker rights
The law grants both duties and rights to the worker in terms of their working days, in the case of not proceeding with the dismissal, these fallen days must be compensated and maintained if they are the origin of the lack or absence in their functions, since at proceed in the legal terms of dismissal and payment of benefits. When the employee does not agree with what is estimated by the employer, he can go to the offices of the Mediation, Arbitration and Conciliation Service (SMAC).
When visiting the SMAC to request your claim, where they will provide you with the requested support after completing the required form; This institution is the administrative entity in charge of solving labor difficulties for some conciliation or settlement, before having to go to the higher instances referred to in a judicial summary. The labor conciliation is a quick way compared to the presentation of the demand before the courts, this fact is carried out in the course of 15 days after the request.
The employee in charge of a dismissal can challenge the business measure in the course of the first 200 days from the date that the event was presented, the first thing to do is show proof of labor conciliation, and if this procedure is negative, you can proceed bring the claim before a court in the social, to proceed to the opinion based on the Royal Legislative Decree.
The basis for the challenge may be based on the fact that the company has not maintained the means required by the Workers' Regulations or collective agreement; In the same way, it can be challenged because the facts indicated in the dismissal letter are not real, or are not a threat to argue a disciplinary dismissal.
To conclude, every company has the right to require its workers to comply with the employment contract, which must be clearly described and discussed in advance so as not to create doubts or differences within its employees; also provide guidance on the consequences of not complying with their work days, hours and assigned functions. Likewise, provide security of the employment contract and good labor relations.
All companies have a staff that fulfill their duties, whose salary must be paid in the correct way, for more information we invite you to read how to make a salary statement.