When an employee is dismissed, it can be difficult to understand whether the dismissal was justified or not. Two fundamental concepts in this context are disciplinary dismissal and unfair dismissal.
In this article, we will explore the differences between these two types of dismissal and how you can protect your rights against unfair dismissal.
What is disciplinary dismissal?
Disciplinary dismissal is a measure taken by an employer to sanction misconduct by an employee in accordance with internal rules and employment law. In general, it occurs when an employee seriously breaches his/her employment obligations.
What are the grounds for disciplinary dismissal?
Disciplinary dismissal can be applied for a range of behaviors that affect the employment relationship. Common reasons include:
- Unmotivated absenteeism or being frequently late for work.
- Theft or inappropriate behavior in the workplace.
- Aggressive behavior or physical/psychological violence towards colleagues or superiors.
- Failure to fulfill professional obligations, such as failure to meet performance standards or deadlines.
How is a disciplinary dismissal carried out?
In the case of disciplinary dismissal, the employer is obliged to follow a clear and transparent procedure. This includes:
- Advance warning: The employer must warn the employee about their behavior and give them a chance to explain.
- Hearing the employee: The employee must be heard about the allegations against him or her.
- Dismissal decision: If the employer considers the misconduct to be serious, they may issue a disciplinary dismissal decision, but only after following the legal procedure.
What is unfair dismissal?
Abusive dismissal occurs when the employer takes a dismissal decision that is not based on legal and fair grounds, but on an arbitrary or discriminatory approach. In this case, the employee is not guilty of any disciplinary misconduct and is dismissed for unjustified reasons.
Common causes of unfair dismissal
Unfair dismissal can occur for a number of illegal or unfair reasons. The most common causes include:
- Discrimination: The employer dismisses an employee because of gender, age, religion, ethnicity, sexual orientation or other reasons that contravene anti-discrimination legislation.
- Back: The employer dismisses the employee as a result of exercising legal rights, such as reporting workplace abuse or complaints about working conditions.
- Personal reasons of the employer: Dismissal can be for personal vendetta or other subjective reasons of the employer, unrelated to the employee's performance or behavior on the job.
How is unfair dismissal carried out?
Unfair dismissal is made without complying with the legislation in force and the procedure does not follow the legal steps set out in the Labor Code. The employer may not only fail to justify the decision, but also fail to respect the employee's right to defend himself or to be properly informed.
The differences between disciplinary dismissal and unfair dismissal
Although both types of dismissal involve termination of employment, there are some fundamental differences between them:
Reasons for dismissal
- Disciplinary dismissal is based on an employee's breach of professional or behavioral obligations.
- Unfair dismissal has no legal or justified basis and is often motivated by subjective or illegal factors.
Procedure
- Disciplinary dismissal involves complying with a set of legal procedures, including prior warning and an opportunity for the employee to express their views.
- Unfair dismissal violates legal procedures and does not allow the employee to defend or justify the behavior.
The consequences
- Disciplinary dismissal can only be challenged if the employee considers the sanction too severe or unfounded.
- Unfair dismissal may lead to damages by reinstating the employee and payment of compensation in view of the violation of legal rights.
How to defend yourself in case of unfair dismissal?
If you have been unfairly dismissed, you have several legal options to defend your rights and seek compensation:
1. Analyze the reasons for dismissal
Firstly, it is important to clarify your reasons for being dismissed. If you have not been given clear or legal reasons for your dismissal, you have the right to ask for further explanations.
2. Consult an employment lawyer
A lawyer specializing in employment law will help you understand whether or not the dismissal was lawful and explain the legal options available to you. He or she can help you lodge an appeal with the court.
3. File a complaint with the ITM (Territorial Labor Inspectorate)
If you suspect that you have been unfairly dismissed, you can lodge a complaint with the ITM, which will investigate possible breaches of employment law.
4. Challenge your dismissal in court
If you cannot reach an amicable agreement with your employer, you can challenge the dismissal in court. The court will examine the legality of the dismissal and decide on compensation or reinstatement.
Defend your rights and understand the differences between disciplinary and unfair dismissal
It is essential to understand the differences between disciplinary dismissal and unfair dismissal so that you can react correctly and protect your rights.
In the case of disciplinary dismissal, it is important to make sure that the legal procedure has been followed, and in the case of unfair dismissal, it is crucial to know your legal options and to consult a specialist lawyer.
Protecting your rights in the face of unlawful dismissal can not only bring financial compensation, but also restore fairness to the employment relationship.