extinction of the labour relationship

conceptual distinction

• extinction= termination of the employement relationship without fault, usually due to objective or external reasons (not a sanction)

  • spanish law defines 4 broad cateogries

• dismissal= termination by unilateral employer decision requiring justified cause in spain (causal dismissal)

• the general effect= termination

  • the dissolution of the contractual link and the cessation of recipricol duties between enmployer and employee 

1. causes of extinction: by the concurrent will of the parties

Types:

1. both the employee and the employer agree to end the contract

2. a previously agreed cause for termination materialises

• settlement= written document that

  • reflects mutual will to terminate

  • settles pending debts ie salary holidays etc

  • signed by both parties 

  • does not imply renouncing labour rights

• examples:

  • causes expressly included in the employement contract

    • must maintain a vaid professiinal licence loss will be grounds for term

  • completion of the work or service (aim of job is completed)

    • employee hired specifically to help with project, when completed contract is done  

  • expiry of a fixed term contract 

  • materialisation of a resolutory condition (condition that ends the contract once it occurs)

    • contract will term auto if company loses its contract with client x 

  • any other mutually agreed clause that is valid under labour law 

    • contract may terminate if employee relocates permanently to diff country

2. extiction due to disaapearence or incapacity of the parties

employee side: contract ends because the employee cannot continue fukfilling the essential ourpose of the employement contract

• causes:

  • death

  • retirement

  • absolute or total permanent disability

employer side: if the employer is a natural person

• causes

  • death

  • retirement

  • absolute or total perment disability

• consequences

  • if there is no business succession employees must be paid one full months salary

  • if there is business succession the employement relationship contninues 

employer side: if the mployer is a legal person/company

• extinction (dissolution/liquidation)= employement contract automatically ends

• business sucession (transmission)= employement contracts must contiue

  • previous and new employers may be jointly liable if legal obligations are not respected 

3. extinction by decision of employee

1. abandonment

• employee stops attending work with no notice

• considered unilateral termination

• employer may claim damages if economic or oganisational harm is caused

• employee does not have the right to unemployement benefits as termination is voluntary

2. resignation

• employee expressly (oral or wrriten) or tacitly (act that shows intention to terminate) communicates the decision to leave

  • must be volunatry and free from employer coersion

  • Business mismanagement or administrative errors do not count as tacit dismissal if the employee can return to work. The employee should continue working and formally complain rather than resign

• must respect notice period

  • as stated in collective agreement

  • if nothing is stated minimum of 15 days

• right to retract within 15 days of communicating without emloyer consent; after retratction requires mutual agreement

• employee does not have the right to unemoloyement benefits as termination is voluntary

• in both cases unemployement benefits are not granted because the employee caused the termination

4. extinction by business decision (dismissal)

• employer unilaterally terminates the contract

  • ALL DISMISSALS IN SPAIN MUST BE JUSTIFIED (CAUSAL SYSTEM)

1. disciplinary dismisall= employee misconduct

2. objective dismissal= business needs (etop reasons) or emplyee ineptiude (not doing job properly)

1. causes of dismisall: disciplinary dismissal 

definition= termination based on serious or guilty breach of the employee

• causes

  • repeated and unjustified absences for attendance or punctuallity

  • indiscipline or disobdeience

  • verbal or physcial offences

  • breach of contractual good faith or abuse of trust

  • contnued and voluntary drop in performance (not skill related but lazy related eg)

  • habitual drunkness or drug addiction

  • harrasment (moral sexual gender based)

• obtains right to claim unemployement beenfits

• Personal social-media posts made outside work and not directed at the employer do not automatically amount to misconduct 

  • But if the employee is identifiable with the company and their external behaviour harms or risks harming its reputation or client relationships, disciplinary dismissal may be justified for breach of good faith and loss of confidence, even if the conduct is not work-related.

disicplinary dismissal formal requirements

 must be flawless, any formal mistake= unfair dismissal (inadmissable) 

• dismissal letter= mandatory written communication

  • must include:

    • indeiitication of the employee

    • clear and precise descrition of the facts in detail (dates, behaviours, context)

    • reference to legal or collective agreement provisions justifying the dismissa

    • date when dismissal takes effect

  • accepted forms: any written form

    • paper lette

    • fax or telegram

    • electronic message as long as authenticity is provable= employee must prove the message was not modified

• preliminary hearing= before issuing the dismissal letter

  • employer must summon and hear the worker allowing the worker to respond to allegations 

• additional obligations for union members= requires double hearings

  • employer must also give an audience to the union delegate

  • this resuts in a double hearing: one call with worker one call with union

dismissal letter extra

• behaviours justify dismissal oly if included clearly and precisley in the letter with specific facts dates and actions described in detail

• where the letter fails to specify the misconduct (ie sinufficent description of forged docs, irregular operations ) or ommits essential details(dates excat legal classification ideitifcation of parties)

  • the dismissal may be declared inadmissable for failure t meet strict formal requirements

judicial control of disciplianry dismissal

• the employee has 20 working das after recieiving the letter to file a claim for unfair dismissal

• 1. approrpirate dismisal= cause is poven+ formal requirements are met

  • employement ends permanently 

  • worker reciees unemployement benefits

• 2. inadmissible= formal defects  (dismissal letter missing elements) or facts not sufficiently proven

  • employer must choose within 5 days:

    • reinstatement + payement of back wages 

    • termination +compensation depending on the date the contract began

      • 45 days per year of service (limit 42 months) for contracts before feb 12 2012

      • 33 days per year of service (limit 24 months) for contracts after 12 feb 2012 

    • if the worker is a representative the worker chooses either reinstatement or compensation

• 3. null= violation of fundamental rights ie preganacy/gender discrimination or retaliation for union activity

  • mandatory reinstatement + payeback of full back wages

2. objective dismissal

employer terminates contract due to business related reasons not misconduct 

1. causes

• employee ineptitude= lack of ability, skill, or aptitude for role

  • preexisting but unknown at hiring

  • supervening ineptitude that arises after employement begins 

• lack of adaptation= employee cannot adapt to technical or organisational changes

  • at least 2 months must pass after changes

  • employer must offer required training 

• ETOP reasons= most common form 

  • economic= sustained losses or financial shutdown

  • technical= changes in technical means

  • organisational= changes in workforce structure 

  • production=changes in product or service demand 

individual vs collective objective dismissal

indidual= affects a number below collective thresholds

collective= within a 90 day period affects

1. 10 or more employees in compnaies with less than 100 workers

2. 10% of workers in companies with 100-300

3. 30% of workers in companies with more than 300 workers 

• must inform workers representatives in advance

• start a consulation period of at least 15 days for negotiations failure to consult= dismissal is null= all workers reinstated 

formal requirements

• dismissal letter (same requirements as disciplnary dismissal)

• copensation= employee must recieve 20 days salary per year of service capped at 12 moths at the moment the letter is delivered

judicial control

• employee has 20 working days from recpeit of dimissal letter to file a dimsisal claim

  • appropriate= termination stands + access employement benefits

  • inadmissable= employer has 5 days of discretion to

    • reinstaement + back wages

    • termination with compensation 

      • if employee is representative their choice 

  • null= reinstate +back wages

• NULL IS ONLY FOR VIOLATIONS OF RIGHTS NOT LACK OF PROOF WHICH IS INADMISSABLE 

summary

• no cause required if employee imposed; cause required if employer imposed

• if employee imposed no employement benefits; if employer imposed employement beenfits

• all object (indiv and collective) requires 20 d/y cap 12 month compensation

  • only collective requires rep consulation and period 

• no compensation if employee imposed or at fault (disciplinary)

• compensation of 1 month pay if employer natural person death