I just got fired, what do I do?
In times of economic instability, where companies go through uncertainty, there seems to be an increase in the number of disciplinary dismissals without compensating the employee. If you find yourself in this situation, the first thing you need to do is ask yourself is if they really had sufficient reason to fire you or, if on the contrary, your dismissal may be declared unlawful or invalid.
When is a dismissal considered unlawful or invalid?
An unlawful dismissal and an invalid dismissal are different.
The dismissal is considered unlawful in cases where the company is unable to demonstrate the mistakes or violations made by the employee, when the mistakes or violations they suggest are not serious enough to justify the dismissal or when the dismissal does not comply with specific formalities.
The dismissal is considered invalid when it is done for discriminatory reasons, violating the fundamental rights and public freedom of the employee.
In addition, a dismissal may also be considered invalid if it falls within one of the following discriminative circumstances:
Dismissal of a pregnant employee, starting from the beginning of their pregnancy until their maternity leave or reduced working day.
Dismissal of an employee during their maternity/paternity leave, leave of absence due to high risk pregnancies, leave of absence for adoption, and once they have reincorporated after the leave.
Dismissal of an employee who requested, or who is on a reduced working day schedule for legal guardianship, nursing or for a hospitalised newborn.
Dismissal of an employee who is a victim of domestic violence who exercise their rights of a reduced or restructured working hour, geographic mobility, the change in the center where they work or the suspension of the working relationship.
Consequences derived from an unlawful or invalid dismissal
In the case a dismissal is considered to be unlawful, the company can decide to opt for a) reincorporating the employee, paying them the entire missed salary since their dismissal, this means any monies they would have made working for the company from the moment they were fired until the dismissal is declared unlawful, or b) pay the employee a compensation of 33 days per year worked.
There is an exception, however, and that is if the dismissal is of a legal representative or worker syndicate, in which it would be the employee who has the right to choose if they would like to be readmitted or compensated.
On the other hand, if the dismissal is declared invalid, the employee will automatically be readmitted and paid their entire missed salary since their dismissal. In this case, the company does not have the right to opt for one over the other.
Which steps must I follow if I have doubts if my dismissal was legal?
If you believe it may be possible that you fall within one of the above mentioned situations, its very important to note that there are deadlines which need to be met and a series of steps to follow:
Step 1: When you receive the dismissal letter and severance pay, it would be ideal to sign as “no conforme”, which means not compliant, meaning you do not agree.
Step 2: As soon as you are fired, it is important to get in contact with a law firm or lawyer who specialises in employment law to review your specific case. It's very important that you do not let too may days pass before doing so, as the deadlines to challenge the dismissal are very short.
Step 3: Within 20 business days of being fired, we need to present the “papeleta de conciliación”, which is a request to have the employee and the company attend a conciliation act to try and resolve the matter extrajudicially.
Step 4: Attend the conciliation act to try and reach an agreement with the company, only should such agreement be beneficial to you.
Step 5: If an agreement is not possible, or if the company does not attend the conciliation act, we would need to file a law suit to the “Juzgado de lo Social”. The deadline to file the law suit is the same 20 business days we had to present the “papeleta de conciliación”, which means that if we presented Step 2 18 days after you were fired, we would only have two days left to file the law suit. The 20 day deadline pauses until the end of Step 4.
Step 6: Lastly, if after filing the law suit we have still not reached an agreement, we would proceed judicially until the courts declare a sentence recognising the unlawfulness or the invalidity of the dismissal.
We are by your side!
If they let you go and you have even the smallest doubt that the company did not have legal reasons for doing so, contact us. We are experts in the field and we would be happy to assess your situation without any commitment. Call us or send us a WhatsApp at +34 610 632 963 o write to us at our email contact@nietojones.com.
