condenced extinction of labour relationship

terminology

extinction= ends employement without fault due to objective or external causes

dimissal= unilateral employer termination requiring justified cause 

• termination ends the contractual link and reciprocal duties 

extinction by concurrent will of the parties

• requires mutual agreement or contractually stated valid causes

  • completion of contracted work/service

  • expiry of a fixed term contract

  • materialisation of a resolutory condition ie if client x leaves

• settlement= signed document by both parties confirming termination and settling outstanding amounts 

  • does not imply renunication of labour rights

extinction due to disappearence or incapacity

• employee side= contract ends 

  • death

  • retirement

  • absolute or total permanent disability

• natural person employer side 

  • causes :death, retirement, disability

  • if no business succesion= contract ends+ employee recieves one month salary 

  • if business sucession=contract continues 

• company employer side

  • extinction of compnay= contract ends

  • business succesion= contracts continue

• business succesion= possible joint liability of old and new employer if legal requirements unmet

decision by the employee

• abandonment= employee stops attening work without notice

  • possible liability for damages

  • no employement benefits

• resignation= express or tacit voluntary termination

  • must be free from employer coercision= Mismanagement (sendig employer to post that doesnt exist) isnt tacit dismissal if work can continues; the employee should complain, not resign.

  • must comply with notice period as per collective agreement or minimum 15 days if unspecified

  • right to retract within 15 days of communicating without emloyer consent

  • no employement benefits

by employer decision= dismissal

• must allways be justified by causal reasons

• disciplinary dismisall= employees fault 

  • can still claim employement benefits despite fault

• objective dismisall= business or capacity related reasons

disciplinary dismissal grounds

• repeated unjustified absence

• indiscipline/disobediance

• verbal or physicalabuse

• breach of good faith/abuse of trust

  • External social-media posts generally aren’t misconduct , but if they harm the company’s reputation, dismissal may be justified  here

• voluntary and contued drop in performance- not ability based

• habitual drunkness or drug addiction

• harassment (bullying sexual gender based)

disciplinary formal requirements

• preliminary hearing= employer must hear the worker before sending dismissal letter

  • union members: employer must also hear the union delegate (double hearing)

• dsmissal letter= mandatory wrriten document requring strict compliance and clear precise detail

  • identiication of worker

  • facts motivating dismissal

  • legal/collective agreement basis

  • effective date

  • delivered in writing (paper, email, whatsapp must ensure non modification/authenticity)

    • when letter defective= dismissal inadmissable

judicial review

• employee ha 20 working days to claim 

• appropriate= cause proven +formalities correct

  • contract ends+ employee recieves unemployement benefits

• inadmissable= cause unproven or formal defects

  • employer must choose within 5 days:

    • reinstatement + back wages

    • termination + compensation

      • pre 12/02/2012= 45 d/y 42 months

      • post 12/02/2012= 33 d/y 24 months

  • if the employee is a worker rep employee chooses reinstate or compensation

• null= violation of fundamental rights ie pregnanacy discrimination or union retaliation

  • reinsyatement+ back wages

objective dismissal

• employee ineptitude= lack of skill/ability

  • preexisting unknown or supervening 

• lack of adaptation to technical/organisational changes

  • at least 2 months since change

  • employer must offer trainiing

• etop reasons= most common

indidual dismissal 

= affecsts fewer workers than collective thresholds

• dismissal letter

• compensation of 20 d/y capped at 12 months from time of notification 

collective dismissal (more requirements)

= within 90 day period

1. 10 or more employees in less than 100 compnay

2. 10% in compannies between 100-300

3. 30% in compnaies more than 300

• prior communication to workers reps + conslation period of 15 days min

  • failure to consult= null dismissal= reinstaement of employees

• dismissal letter

• compensation of 20d/y capped at 12

judicial review

employee ha 20 working days to claim 

• appropriate= cause proven +formalities correct

  • contract ends+ employee recieves unemployement benefits

• inadmissable= cause unproven or formal defects

  • employer must choose within 5 days:

    • reinstatement + back wages

    • termination + compensation

      • pre 12/02/2012= 45 d/y 42 months

      • post 12/02/2012= 33 d/y 24 months

  • if the employee is a worker rep employee chooses reinstate or compensation

• null= violation of fundamental rights ie pregnanacy discrimination or union retaliation

  • reinsyatement+ back wages