Lesson 11: Termination of the Employment Contract

AutorPilar Núñez-Cortés Contreras
Cargo del AutorProfesora Titular de Área. Universidad Loyola Andalucía

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Learning Objectives
  1. Delimitate the types of causes of extinction of the employment contract

  2. Knowing the system of every cause of extinction of the employment contract.

1. Definition of the Termination of the Employment contract

The termination of the employment contract consists for the employer and the worker of the extinction of the obligations derived from the labour legal bond created by the existing relationship among them. The causes that put and end to an employment contract are enumerated in the article 49.1 ET, which can be grouped in four types, if the cause of extinction can be attributable only to the employer, or to the worker, or to both of them by mutual agreement or by reasons outside the control ofboth parties.

2. Termination Due to the Employer's Will

If the termination of the employment contract is produced by the will of the employer, in accordance to any cause established in the law, it's a dismissal. There are many modalities of dismissals in our system; some are based in certain objective circumstances (o reasons) (dismissal for objective reasons) and others in the capacity of employer to punish behaviours specified (defined) in the law as contractual breaches of the worker. They are basic characteristics of dismissal the following two:

· Unilateral decision of the employer

· Decision that has to be justified (causal)

2.1. Disciplinary dismissal: concept and causes

The disciplinary dismissal is regulated in the articles 54 and 57 ET. It's a modality of dismissal in which the employer is authorized to dismiss a worker as penalty for the serious and guilty breach of the worker. This sanctioning faculty given to the employer by our system is what characterizes the disciplinary dismissal. When the worker is in disagreement with the dismissal, the courts will determine if the employer's decision is

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legal (allowed by law, in accordance with the law), notwithstanding that the employer has attributed by the law the power to sanction with dismissal and it will be effective since the moment he decides it.

The norm demands two requirements (art. 54.1 ET), that the breach must be serious and guilty, so is not enough with the severity but also it must apply an element of guilt. Such guilt will concur according to the judicial doctrine, not only when there is misconduct, but also the dismissal may occur when there is a lack of diligence from the worker, which he is responsible for, and that constitutes a serious breach of the labour obligations that justifies the sanction decided by the employer (o the employer's decision)

The article 54.2 ET establishes as causes for disciplinary dismissals those behaviours that deserve such penalty, which in any case, must be individually analysed according to the circumstances of every case, so that the delimitation of the responsibility is applied to the so called gradualist doctrine, according to which, the punishable behaviours that aren't serious enough, even when they are still punishable, don't deserve to have the maximum sanction of dismissal. Lastly, it should be noted that even if they are taxed causes, the courts allow the delimitation and the realization of each of them through the collective bargaining agreement.

The article 54.2 ET established the following punishable behaviours:

Repeated and unjustified causes of attendance or punctuality to work: the absence to work is punishable, it must be repeated and also it must be unjustified, therefore, these three elements must concur: lack of provision (either by absence or unpunctuality), reiteration of the fault and absence of justification. Regarding the reiteration, the ET doesn't set any type of delimitation, leaving its regulation to the collective bargaining agreements, which usually address this issue, specifying when the absences or the lacks of punctuality are considered very severe and therefore worthy of dismissal; as well as establishing the requirement of the previous communication of the justified absences to the employer before they occur, which is an obligation that is released from the worker by the courts when the lack of attendance or the justified unpunctuality has been produced unexpectedly or didn't have not enough time to warn about it.

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The indiscipline or lack of obedience at work: the disobedience is linked to the breach of an express and unequivocal order of the employer, whereas the indiscipline wouldn't require of such order but would consist of the breach of the labour norms. The courts have exonerated the worker from the obedience in those cases where the order leads to a dangerous situation for the worker, constitutes unlawfulness or manifest arbitrariness.

Verbal or physical offenses to the employer, to people that work at the company or to relatives who live with them: Regarding the verbal offenses, their severity must be objectively verifiable, because the same expression or act can be offensive or not depending on the context in which is produced, and similarly, it must concur a spirit of insulting, is not enough that the taxable person feels offended; we must take into account that are included as verbal offenses the insults, the injuries or any other type of personal offense. Regarding the physical offenses, is not required its consummation, its sufficient with the attempt. Lastly, the outreach of the people working at the company and even the relatives that live with them, is understood by our jurisprudence that must be produced in a context of working environment and not, for instance, in a context of a private argument outside the workplace due to a different matter of the labour relationship.

Violation of the contractual good faith and the abuse of confidence when working: It's a generic and undetermined behaviour that the jurisprudence has been delimiting. Within this type of dismissal there are a multitude of punishable behaviours, including the theft and robbery to the employer, deception, data hiding or the passivity in events that cause harm to the company, the breach of duty to maintain secrecy regarding confidential information, unfair competition, etc. It's important to highlight that in those cases, in which the concurrence of the transgression of the contractual good faith is appreciated, the damage that can suffer the company is irrelevant, because what is punishable is the inexcusable behaviour of the worker, even in the absence of economic damage and the gradualist doctrine doesn't operate.

The continuous and voluntary decrease of the normal or agreed job performance: The statement covered in the precept contains the three required elements: firstly, that the decreased performance can be objectively observed, that is to say, its

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somehow quantifiable, usually compared with previous periods; secondly, that is voluntary, which means that obeys the conscious will of the worker and it's not justifiable and, thirdly, that is continuous, which means that is not sporadic or is an isolated event in time.

The regular (o usual) drug or alcohol abuse: The doctrine of the Supreme Court requires the existence of two requirements, in one hand the regularity, which is the persistence in the alcohol abuse (not in the case of drugs, as we shall see) and on the other hand the negative impact at work, that is, the realization that because of this alcohol consumption the worker makes mistakes in the labour provision. Logically every case must be analysed and its circumstances must be singularly weighted, since in the case of a risk profession, for example an aircraft pilot, the regularity is not as relevant, being sufficient the sporadic consumption that could seriously affect the labour activity. Likewise, and related to the regularity, the doctrine generally requires in the case of alcohol abuse a certain relapse of intoxication (drunkenness) whereas for the drug abuse a lesser regular consumption can end up in dismissal.

The harassment on grounds of racial or ethnic origin, religion or convictions, disability, age or sexual orientation and the sexual harassment or gender of the employer or the people that work at the company, is a type written in the paragraph thirteen of the eleventh additional disposition of the L.O. 3/2007, ofMarch 22nd, for the effective equality of women and men.

2.1.1. The form of the disciplinary dismissal

The article 55.1 ET establishes that the dismissal must be notified in written to the worker, including the facts that motivate it and the date when it takes effect. Consequently, the first formal requirement of the disciplinary dismissal is the existence of the so-called letter of dismissal; that is to say that the will of...

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