The dismissal of an employee is one of the most sensitive decisions within a company. Not only does it affect the internal organization and the work environment, but it can also have legal consequences if it is not carried out correctly.

Attorneys specialized in labor law recommend companies to act with caution before proceeding with a dismissal, making sure to comply with current regulations and to have a solid legal backing. A poorly managed procedure may result in unnecessary indemnities or even in the declaration of nullity of the dismissal.

In this article, we analyze the key aspects that every company should consider before terminating the employment relationship with an employee.

1. Determine the type of dismissal and its legal justification.

Before initiating the process, it is essential to identify the type of dismissal to be applied. The legislation distinguishes several scenarios, each with specific requirements.

Disciplinary dismissal

This type of termination occurs when the employee has seriously failed to fulfill his or her obligations. Examples include:

• Repeated and unjustified absences in attendance or punctuality.
• Acts of disobedience or indiscipline at work.
• Abuse of trust or breach of contractual good faith.
• Workplace harassment or aggression within the work environment.

In order to justify this measure, it is essential to have documented evidence to support the decision.

Companies must ensure that the disciplinary procedure prior to termination of the contract is proportional to the misconduct committed. In many cases, before reaching a definitive measure, it is advisable to apply gradual sanctions, such as written warnings or temporary suspensions, which allow the employee to correct his or her behavior.

In addition, it is important that the company’s internal protocols and disciplinary rules are properly defined and known to all employees to avoid misunderstandings or unnecessary conflicts.

1.2. Objective dismissal

This occurs when there are economic, technical, organizational or production causes that justify the termination of the contract. The most common reasons include:

• Sustained reduction in revenues or decrease in the company’s demand.
• Changes in the organizational or technological structure that make it unfeasible to maintain the job.
• Internal restructuring to ensure the viability of the business.

In these cases, the employee is entitled to a severance payment of 20 days per year worked, with a maximum of 12 monthly payments, in addition to 15 days’ notice.

Collective dismissal

When the company needs to reduce its workforce significantly in a period of 90 days, it must be processed by means of an Expediente de Regulación de Empleo (ERE). In these cases, it is mandatory to negotiate with the workers’ representatives and to comply with additional requirements to guarantee the legality of the process.

2. Compliance with regulations prior to a layoff.

Labor lawyers recommend reviewing the regulations in detail before executing a dismissal, in order to avoid claims or penalties. Some key aspects include:

• Revision of the employment contract: It may contain specific clauses on termination of the contract, indemnities or additional conditions.
• Applicable collective bargaining agreements: In some industries, collective bargaining agreements may establish additional requirements regarding dismissals and financial compensation.
• Legislation in force: It is essential that the company ensures that it complies with the Workers’ Statute and the regulations applicable to the sector.

Failure to comply with any of these provisions may result in a declaration of nullity of the procedure, obliging the company to reinstate the worker or pay higher compensation.

3. Documentation and communication of the dismissal

To avoid conflicts, it is essential to notify the decision in an adequate manner and to have all the required documentation.

3.1. Drafting of the dismissal letter

The letter of termination is a key document that should include:

• The specific cause that motivates the decision.
• The date on which it will take effect.
• Reference to the applicable regulations and, if applicable, to the evidence justifying the measure.

If this document is not drafted correctly, the measure could be challenged by the worker.

3.2. Notice periods and notice requirements

In cases where the regulations require it, the company must communicate the decision at least 15 days in advance. If this period is not respected, it will be necessary to pay an equivalent financial compensation.

4. Settlement and severance after a dismissal

Upon termination of the contract, the employee must receive the payment corresponding to the economic concepts pending. This calculation may include:

• Salary corresponding to the days worked in the current month.
• Pending extraordinary payments, if they have not been prorated.
• Compensation for vacations not taken.
• Indemnification, if applicable.

The severance payment is a document that should be carefully reviewed before signing. If the employee has any doubts, he/she can ask for advice to ensure that the amounts are correct.

5. Risks of challenges and labor claims

If the employee considers that the termination of his contract has been unjustified, he may challenge the decision before the courts. In such cases, the judge may declare:

• Proceeding: It is confirmed that the company acted in accordance with the regulations.
• Unjustified: It is determined that there was no valid justification, obliging the company to reinstate the worker or compensate him with 33 days per year worked.
• Null: It is concluded that the measure violated fundamental rights, which obliges the company to reinstate the worker and pay him the wages not received.

To avoid claims, it is advisable that companies have specialized legal advice and follow all the required formalities.

The termination of an employee’s employment relationship is a process that must be carefully managed to avoid legal disputes. Correctly identifying the cause, complying with current regulations and properly documenting the decision are fundamental aspects to ensure a risk-free procedure.

Attorneys specialized in labor law can advise companies on the correct management of dismissals, ensuring that the rights of both the employee and the employer are respected.

If you need advice on the proper handling of a termination or any other aspect of employment law, our team is here to help you. At Tecem Abogadoswe offer solutions adapted to each case, guaranteeing a safe process and in accordance with current regulations. We invite you to visit our website and follow us on our social networks, where we share updated information and legal advice that can be very useful. Do not miss the opportunity to be informed and have the support of specialized professionals.