DISMISSALS INITIATED BY THE EMPLOYEE
Written by Josep Conesa
Employment and insolvency lawyer
Dismissals initiated by the employee are situations in which an employment contract is terminated at the employee's request. These cases arise not so much from the employee's free choice, but rather from the employer's serious breach of the obligations owed to the employee. When an employer violates their most fundamental duties towards the employee, this triggers the termination of the employment relationship.
In both of these cases, as the proceedings concern contract termination at the employee's request, the Supreme Court has ruled that the employee is obliged to continue working until the favourable ruling becomes final. This obligation is important to bear in mind, since failure to attend work in the meantime could result in a dismissal on grounds of absenteeism, which could be declared fair.
1.- Delay in payment of salary: The right to receive agreed or legally established remuneration on time is a fundamental entitlement, the violation of which may give rise to termination of the employment relationship with the same compensation consequences as unfair dismissal. Based on the Supreme Court's interpretation, it can be established that such delays must be sustained and serious, occurring over a period of four months. The Supreme Court has determined that this ground for termination does not apply where there is merely a one-off delay; it has held that if a company delays payment on a single occasion over twenty years of service, and moreover attempts to remedy the situation by offering the amount owed at the pre-trial conciliation hearing, this cannot be considered a valid ground for employee-initiated dismissal.
2.- Non-payment of temporary disability (IT) (IT) benefits: Where an employer refuses to pay temporary disability (IT) benefits — whether in the form of delegated payment or voluntary improvements agreed under a collective bargaining agreement — this equally constitutes grounds for contract termination on the basis of a serious breach of the employer's obligations, entitling the employee to compensation of forty-five days' salary per year of service, up to a maximum of forty-two monthly payments, provided the conduct in question is deemed sufficiently serious.
DISMISSALS ON objective grounds
In dismissals on objective grounds, it is essential, on pain of the dismissal being declared null and void, that in all cases of dismissal on objective grounds, the applicable severance payment of twenty days' pay per year of service is made available to the employee at the same time as the written notice is handed over — with periods of less than one year prorated by month and subject to a maximum of twelve monthly payments.
Where a dismissal on objective grounds cites economic grounds and the severance payment is not made, this must be stated in the written communication to the employee, without prejudice to the employee's right to claim it.
In all cases, a notice period of thirty days must be given from the date the personal written notice is delivered, and a copy of the notice period letter must be provided to the employees' legal representative.
1.- Employee incapacity: Where an employee proves incapable of performing their role — whether this incapacity arises after they have taken up their position within the company, or existed beforehand but was unknown to the employer — this constitutes grounds for dismissal. This does not apply, however, where a probationary period was served, in which case incapacity cannot be relied upon as grounds for dismissal.
This ground covers a general lack of ability or knowledge required for the agreed role: absence of required qualifications, loss of a driving licence, suspension of a firearms licence, professional disqualification, and similar circumstances.
Incapacity for work must be distinguished from temporary disability (IT), which is a ground for suspension of the employment contract rather than dismissal; from permanent incapacity, which is a ground for termination of the contract; and from partial permanent disability (IPP), which is a ground for functional and geographical redeployment. In this last case, provided the incapacity does not affect the employee's normal performance, the employer must reinstate them. If it does affect performance, the employee must be assigned to a suitable post; if no suitable post exists, the salary may be reduced, but by no more than 25% and always respecting the minimum wage (SMI).
2.- Failure to adapt to changes in the role: An employee's failure to adapt to technical changes made to their position constitutes grounds for termination of contract on objective grounds.
For this ground to apply, at least two months must have elapsed since the change was introduced. The adaptation period may of course be extended by collective bargaining agreement or individual contract. The technological changes introduced must be "reasonable", there must be genuine operational justification, and the limits of the employee's professional grade and category must be respected — it would not, for example, be permissible to assign specialist tasks to an unskilled worker.
Employee incapacity may also arise or come to light after the employee has taken up their position within the company. Any incapacity that existed prior to the completion of a probationary period may not be invoked after that period has ended.
3.- Dismissal on objectively established grounds for eliminating posts: Under this ground for dismissal, the law requires that the reasons put forward be economic, technical, organisational, or production-related in nature.
Dismissals based on technical, organisational, or production-related grounds will not be addressed here, as that would make this article unduly lengthy. However, certain aspects of economically-grounded dismissals warrant further clarification. The Supreme Court has established that, when economic grounds are invoked, the company's situation need not be irreversible, nor is total non-viability required. The Court accepts that, whilst the measure need not be absolutely necessary, it must contribute to overcoming a negative economic situation — it is sufficient that the company is sustaining significant losses for the situation to be considered negative. This ground must therefore be assessed within a preventive framework focused on the overall viability of the company, and not solely from the perspective of a single struggling workplace.
4.- Absenteeism: Absences from work — even where justified — may constitute grounds for dismissal when they are intermittent and reach 20% of working days over two consecutive months, or 25% over four non-consecutive months within a twelve-month period, provided that the overall absenteeism rate across the workforce at that workplace exceeds 5% during the same periods.
DISCIPLINARY DISMISSAL
The grounds for disciplinary dismissal can be summarised as a 'serious and culpable breach of duty by the employee'. The typical scenarios are set out below:
1.- Lateness and unauthorised absence: Repeated and unjustified lateness or absence from work may constitute grounds for disciplinary dismissal. Lateness covers both arriving late and leaving during working hours. Absence refers to failure to carry out duties — even when the employee is physically present at the workplace — or a general failure to fulfil employment obligations.
The notes of severity — that is, repetition — and culpability — that is, that the absences are unjustified — are required.
2.- Insubordination or disobedience: this corresponds to a failure to comply with the duty of obedience. It may involve disobedience of specific instructions or of rules governing the performance of the work in question.
The disobedience must be unjustified, clear, open, definitive and firm; it therefore does not include an isolated failure to comply with a managerial instruction. Severity is normally demonstrated by repetition, although a single act of disobedience may also be sanctionable depending on the circumstances — for example, where the conduct is intentional or even negligent.
3.- Verbal or physical offences: this ground arises when such conduct is directed at the employer, fellow workers at the company, or family members living with them. These behaviours include both verbal abuse and physical assault (including sexual harassment), whether committed inside or outside the workplace and during or outside working hours, provided they are connected to work. Threats and blackmail also constitute grounds for dismissal.
4.- Breach of trust: this ground relates to the violation of good faith in the contractual relationship, as well as abuse of trust in the performance of work. It consists of intentional or negligent conduct by the employee that causes a loss of trust on the part of the employer, even where no actual harm is caused to the company. The conduct need not be criminal in nature; examples include: misappropriation of money regardless of the amount, theft of goods regardless of the loss caused, unfair competition, and concealment of criminal acts committed by others.
A common instance of breach of trust is working — whether as an employee or on a self-employed basis, paid or unpaid — while on temporary disability (IT).
5.- Reduction in performance: a sustained and voluntary decline in work performance below the normal or agreed level constitutes grounds for dismissal.
The law requires that the reduction in performance be both voluntary and sustained in its severity.
As regards culpability, it should be noted that if the employee does not demonstrate external factors beyond their control that are preventing them from performing, the decline is presumed to be voluntary. It may amount to mere negligence on the part of the employee — for example, where the employee's performance drops because they are engaged in other activities in their free time. The employer's only obligation is to demonstrate that the decline has occurred.
If the employee's underperformance is involuntary, it may be argued that this constitutes dismissal on grounds of incapacity of the employee, a situation we have discussed above.
For a full discussion of this type of dismissal, see this article on dismissal for poor performance.
6.- Alcohol and substance misuse: habitual intoxication or drug dependency that has a negative impact on work constitutes grounds for dismissal. The intoxication or dependency must demonstrably affect work performance, and it is the employer who must prove the reduction in productivity or the risk of accidents to the employee, colleagues, or third parties.
The intoxication must be habitual rather than isolated; however, where it puts third parties' lives at risk, a single incident may suffice (for example, an employee who drives as part of their role).
7.- Other grounds for dismissal: it is worth bearing in mind that collective bargaining agreements set out a graded scale of employee misconduct and corresponding sanctions. pursuant to the specific conduct classified as serious misconduct under the applicable agreement, and subject to how the courts interpret such provisions, it may be possible to bring an employee's behaviour within one of the recognised grounds for dismissal.
