Can a dismissal already notified to an employee be rendered ineffective without his/her consent?
Pursuant to Article 55.2 of the Workers’ Statute, if an employer realizes that he has dismissed a worker in breach of statutory requirements, he may carry out a new dismissal that complies with the requirements that he did not meet in the previous dismissal. This dismissal, which only takes effect from the date the employment was ended, must be carried out within 20 days as from the day following the first dismissal. It is necessary for the employer to (i) make available to the employee the salary accrued in the interim period, during which time (ii) the employee must have remained registered with the social security.
Numerous doubts have arisen when interpreting this legal provision, mainly as regards the nature and effects of this second dismissal by the employer.
The Supreme Court’s recent judgment of November 20, 2014 reaffirms the Court’s position in relation to the above aspects and for the first time extends that theory to dismissals on objective grounds.
The Court’s conclusions are as follows:
- The possibility established in the Worker’s Statute of “a dismissal of someone who has already been dismissed” is a precautionary measure and does not mean that the first dismissal has been corrected. Consequently, the employee can still contest the first dismissal in court.
- The employee may bring this lawsuit even after the second dismissal (that is, it is not mandatory to file the complaint before the second dismissal).
- Finally, the Court’s ruling is clear that the employer cannot render a dismissal ineffective once it has been notified, without the employee’s
In short, this is a complex system since according to the Supreme Court, two lawsuits due to the dismissal of the same individual can be filed simultaneously (although the second is considered precautionary). However, it has been made quite clear that the employer may not, under any circumstances, render ineffective a dismissal that has already been notified, without the employee’s consent.
Garrigues Labor and Employment Law Department