Disciplinary dismissal: Causes
Disciplinary dismissal is the most serious manifestation of the sanctioning power of the company due to the serious consequences it may have on the worker’s situation, both in terms of their way of life and their legal status. The dismissal participates of all the characteristics attributed to the other disciplinary sanctions, although, by their serious consequences, in the fault attributable to the worker, the characteristics of gravity and transcendence must necessarily concur.
The ET collects the following listed list of types of non-compliance of the worker that, in any case, must be serious and guilty:
I. Absence of attendance or punctuality to work.
II. Indiscipline or disobedience at work.
III. Verbal or physical offenses.
IV. Transgression of contractual good faith.
V. Decrease in performance.
SAW. Drunkenness or drug addiction.
VII. Discriminatory harassment
Workers can also be sanctioned by virtue of labor violations, in accordance with the graduation of faults and sanctions that are established in the collective agreements that apply to them; enough the concurrence of some of the legal or conventional causes so that the employer can proceed to the dismissal of the worker.
I. Absence of attendance or punctuality to work
It has been understood that the lack of punctuality, or partial absenteeism, is comparable to the absence without justification during the work day, since it involves both the delay in going to work, and a rush to abandon it. However, such an equalization can not always be carried out, when the applicable agreement expressly gives differential treatment to absences from work and to punctuality.
Are justified failures caused by events that are independent of the will of the worker and those who are not in any way guilty, although they prevent you from going to work. A certain number of faults, even if justified, can motivate an objective dismissal. The lack of assistance is distinguished from the abandonment of the job in which it is assimilated to voluntary retirement and requires an unequivocal consent by the worker.
The inaccuracy of the ET in order to the number of absences, has to be saved through the complementary application of the collective agreement applicable in the company, given that conventional rules usually specify the repeated days of lack of voluntary assistance to work that result in dismissal. In the event that the collective agreement does not specify the number of absences or there is no collective agreement applicable, it must be at the criterion of seriousness, through an appropriate individualization. In addition, if the Collective Agreement does not classify punctuality as very serious faults, but as minor or serious, they could not be sanctioned with dismissal.
The employer must prove the absences or tardiness of the worker; and this, if he denies them, must prove that they did not occur or, in his case, that they were justified. The lack of business accreditation of the lack of assistance and punctuality in the case of a pregnant worker, lead to the nullity of the dismissal.
Absences and temporary disability
Workers in temporary disability (IT) must present to the company the medical parts of discharge, discharge and confirmation in the terms established by regulation. The suspension of the contract and the perception of the subsidy come to an end when it is issued high for cure.
During the IT the contract is in suspense until it falls administrative resolution declaring the absence of permanent disability (IP). At that moment, the duty of the worker to return to work is born, under penalty of having his / her faults – already unjustified – lead to a proper dismissal. The ignorance of the duty to re-enter for not having been discharged from the hospital does not excuse the worker. This general rule only has as exception the cases in which, despite the medical discharge or the resolution declaring the absence of permanent incapacity, the worker certifies that an IT situation persists that prevents reinstatement to work. In addition, if the IP is denied but the maximum term of IT has not been exhausted, this situation is not necessarily extinguished, nor the associated benefit as long as no medical discharge is issued and the employee is still unable to work.
The declaration of permanent disability (total, absolute or severe disability) is cause for termination of the employment relationship. Disciplinary dismissal for transgression of good faith for carrying out other work during the IT, or any other sanctionable breach. Objective dismissal is also possible by computing those justified faults. The dismissal that causes the disease in general is not discriminatory, however, in some cases it can be considered null, because it is considered that the disease is disabling and the disability causes discrimination or when the worker is pressured by the company to voluntarily request the discharge, with the latent threat that, if he did not do so, he would be dismissed.
II. Discipline or disobedience at work
By indiscipline is meant not only the attitude of open rebellion against the orders received from the employer, but also the act of breach, conscious and wanted, of the obligations of the contract. It should be evident in the worker a reluctant will to comply with business orders and without a simple disobedience, which does not result in a loss to the company, may be sanctioned as dismissal. Disobedience must be faced with the clear and concrete orders of the superior, who has competence to do so, within the scope of the company and without the worker having the value judgment on the order. The breach must meet a triple legal requirement:
1. Serious or transcendent, being fundamental to qualify as serious a conduct, that in the proven facts a sufficient description that evidences a clear adequacy between act and sanction.
2. Unjustified, a requirement that is not met, when the reason for the refusal is based on the inability or technical impossibility to do a task of limited entity.
3. Guilty.
The worker must comply with the business order, without prejudice to its possibility of opposing, challenging or putting it in the knowledge of the ITSS (principle “solve et repete”). The refusal to comply, the right of resistance, without incurring in disobedience, is only possible when the employer acts with manifest arbitrariness and abuse of rights or violates the fundamental rights or the dignity of the worker or when the order refers to a job alien to the contract and not justified by special circumstances, that is, if the order is clearly unlawful, or implies a serious and imminent objective danger; although it has been considered unjustified in the face of a slight risk or that is classified as non-existent, the entrepreneur having complied with his preventive duties.
III. Verbal or physical offenses
The offenses – verbal or physical – of a serious nature (understood as an action that humiliates and hurts the self-love or dignity of the offended party) are infringed upon the employer, the workers of the company or the relatives who live with them.
The seriousness of the verbal offenses must be judged in their context, analyzing the expressions used, the purpose pursued, the occasion in which they are discharged, their projection within the workplace and the concurrent circumstances in the persons involved. A single verbal offense can suffice, if its seriousness and guilt is proven.
On the other hand, physical aggressions are always serious in the workplace, without requiring a harmful result, suffice a single aggression if it has sufficient entity unless the action of the worker is more defensive than offensive.
IV. Transgression of contractual good faith
The transgression of contractual good faith and the abuse of confidence in the performance of work are grounds for dismissal. In this case an intentional element is demanded by the worker that does not require the concurrence of a specific intent, guilty negligence is enough without it being necessary to foresee the harmful result of his conduct. Good faith must preside at all times the employment contract as a relationship of successive tract.
The transgression of good faith is based on the violation of loyalty and the loss of trust. When trust is lost, no graduation is possible, because trust is or is not had, being irrelevant the damage caused to the company by said transgression and may be a real or potential harm. Although it is necessary to ponder the position that the dismissed person occupies in the company, his personal and professional circumstances. Imposing the sanction with equity, because it can not be disproportionate. Corporate tolerance degrades both the seriousness and the culpability of the breach of contract. Therefore, if the company had created an awareness of tolerance of certain practices, such behavior prevents its later use to justify a dismissal.
Room IV has understood that it is dismissed for transgression of good faith:
a) When the worker breaks the minimum and essential loyalty to the company, even if there is no unfair competition. This is the case, for example, when a worker hides that he had been hired by another employer to provide services for the same client company, while his first employer – who had suffered the termination of the contract by the client company and who for that reason , he was considering an ERE- he was waiving him to go to work with the right to receive a salary (paid leave). Especially when his first employer had forbidden him to carry out work for the client company and the worker does not go to the workplace of such employer on the date it was required without giving any explanation or justification.
b) for illegal, voluntary and deliberate acts, even if they take place outside the workplace and work hours, if they cause damage to the company and have some kind of relevance or connection with the work contract. This is the case in the case of theft in another store of the employing chain.
V. Decrease in performance
The cause of disciplinary dismissal is the serious and culpable reduction of the normal or agreed performance, in breach of the objectives indicated in the contract as minimum, as long as these are not abusive. The demanded and not reached yield, must be the normal and ordinary one, being able to have fixed in work contract or in collective agreement.
It has been understood that the decrease in performance that can justify disciplinary dismissal is as follows:
1. Relevant and therefore serious decrease. Should be attended to the circumstances of the case, that is, the situation of the sector, career of the company and the worker, as well as elements of comparison, such as the performance of the average worker, other colleagues or the previous performance of the worker himself, all this, under homogeneous conditions, either with respect to a level of productivity previously delimited by the parties (agreed) or based on what should be considered due, within a diligent fulfillment of the benefit.
2. Continued decrease: this requirement does not occur when it is occasional or isolated, since a prolonged behavior is required, not necessarily uninterrupted.
3. Voluntary reduction: the company must prove that the decrease responds to a negligent behavior, intentional or contrary to previous behavior of the worker or in relation to that of his colleagues, of the same category and for an equivalent compared period of time. The worker must prove that the decrease is due to causes beyond his control; not being due to IT or to the economic crisis itself; especially when dealing with disabling ailments.
This cause of disciplinary dismissal should not be confused with the objective dismissal for supervening supervening or for lack of adaptation to the modifications where the notes of gravity and culpability in the voluntary conduct of the worker do not have to concur.
SAW. Drunkenness or drug addiction
In order for drunkenness or drug addiction to be causes for dismissal, they must be habitual and have a negative impact on the work, so that it can not be appreciated when the incident is purely episodic, except that in the case of a dangerous productive activity the Collective Agreement typifies as lack Drunkenness is very serious, without requiring regularity in the face of accident prevention.
Only concur when the negative incidence of drug addiction in the performance of their duties, or usual profession. Disciplinary dismissal does not apply when drug addiction only affects its personal or private sphere.
Nor is this cause of dismissal applied to people with drug addiction problems in the process of rehabilitation or social reintegration, hired by an insertion company. If during the validity of the contract, the insertion company is aware that the worker incurs in this cause, he will inform the public social services that can propose a process of detoxification or detoxification and, if necessary, a suspension of the contract . If the worker does not do it without just cause, then the cause of dismissal is applicable.
VII. Discriminatory harassment
Discriminatory harassment based on racial or ethnic origin, religion or belief, disability, age or sexual orientation and sexual or gender-based harassment of the employer or persons working in the company is grounds for disciplinary dismissal. Note that it is necessary that moral harassment or mobbing be discriminatory for the reasons cited. The absence of this requirement has resulted in the dismissal of a harasser leading, in some cases, to the transgression of good faith or verbal or physical offenses.