Termination of the employment contract

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Grounds

The employment contract will be terminated for the following reasons:

a. The mutual agreement of the parties.

b. For the reasons validly stated in the contract unless they constitute a manifest abuse of rights by the employer.

c. Owing to expiry of the agreed time.

If the contract has had a duration of more than one year, the employer must notify the end of the contract at least fifteen days in advance.

The termination of the contract due to production circumstances will grant the right to receive compensation equivalent to 12 days of salary per year of service, with periods of less than one year being calculated in months, or any other compensation which, improving this legal minimum, is envisaged in the applicable collective bargaining agreement.

d. Owing to the resignation of the worker.

They must provide the advance notice determined in the applicable collective bargaining agreement.

e. Owing to death, severe disability or total or absolute permanent disability of the worker, without prejudice to the right to reserve a position for two years in the event that the worker is expected to get better.

f. Owing to worker retirement.

g. Owing to death, retirement or disability of the employer.

In these cases, the worker will have the right to payment of an amount equivalent to one month's salary.

h. Owing to force majeure which definitively makes it impossible to provide work as long as its existence has been verified by the competent legal authority.

The worker will have the right to receive compensation equivalent to twenty days of salary per year of service with a limit of twelve monthly payments.

i. Owing to economic, technical, organisational or production reasons

The worker will have the right to receive compensation equivalent to twenty days of salary per year of service, with periods of less than one year being calculated by month, with a maximum of twelve monthly payments.

The law determines two differentiated procedural channels depending on the number of workers affected by the termination in relation to the total of the company and workplace.

• i.i. Collective dismissal
  
  A redundancy procedure must be processed when the number of people affected, in a period of 90 days, exceeds the following thresholds:
  • 10 workers in companies which employ less than 100 workers.
  • 10% of the company's workers in those companies which employ between one hundred and three hundred workers.
  • 30 workers in companies which employ more than 300 workers.
  • The total workforce as long as the number of people affected is greater than 5 when it occurs as a result of the total cessation of its business activity.

Taking into account the criteria established by the Court of Justice of the European Union, this calculation must be understood as referring to both the company and the workplace.

The collective dismissal procedure is thoroughly regulated in Royal Decree 1483/2012 of 29 October which approves the Regulation of collective dismissal procedures and the suspension of contracts and reduction in working hours, whereby the information and documentation that the employer must deliver to the legal representatives of the workers to justify the proposed termination measure takes on particular importance, as well as the consultation period to be undertaken between the employer and the legal representatives of the workers during which both parties must negotiate in good faith in order to determine the grounds for the dismissal and the measures to reduce its negative impact on the workforce. The consultation period may end with or without agreement. In the latter case, the employer must notify the legal representation of the workers of its decision regarding the collective dismissal.

• i.ii. Individual dismissal
  
  In the event that the thresholds established for collective dismissal are not exceeded, the termination will be carried out individually and the following formal requirements must be met:
  • Written communication detailing the grounds justifying the termination.
  • 15 days' notice, although the notice may be replaced by paying compensation equivalent to the salary for the days of notice omitted.
  • Making available the compensation provided for these terminations concurrently with the delivery of the letter. It may only be exempted from this obligation if the company bases the termination on economic grounds and it does not have the liquidity to meet its payment.
  • Granting the worker six-hour weekly leave during the notice period so that he can look for a new job.
  • Submission of a copy of the letter of dismissal to the legal representatives of the workers.

j. Objective causes linked to the worker

The following are included as objective causes which justify dismissal:

• Ineptitude of the worker known or occurring after his effective placement in the company.
• Failure to adapt to the technical modifications carried out at the workplace when said changes are reasonable and provided that the necessary training has been provided.
• Budgetary insufficiency in the case of contracts formalised by non-profit entities for the implementation of public plans and programmes without stable financial resources and financed by the Public Administrations (in the event that the aforementioned thresholds for dismissal owing to economic reasons, technical or production objectives are exceeded, it will be necessary to adopt the collective dismissal procedure).

In these cases, the affected persons will have the right to receive compensation equivalent to twenty days of salary per year of service, with periods of less than one year being calculated by month, with a limit of twelve monthly payments.

The employer must comply with all the requirements set out in section i) above for individual dismissal for economic, technical, organisational or production reasons.

k. According to the wishes of the worker based on a breach of contract by the employer.

The following are employer breaches that justify the termination with compensation of the employment relationship:

• Substantial modifications in working conditions carried out without respecting the provisions of the law and which result in impairment of the worker's dignity.
• Non-payment or continued delays in payment of the agreed salary.
• Any other serious breach of its obligations by the employer, except in cases of force majeure, as well as his refusal to reinstate the worker under his previous working conditions when a court ruling has declared there to be unjustified substantial modification or geographical mobility.

This termination must be requested before the Labour Court by filing the attendant lawsuit. It will be the judge who, when evaluating the employer breach, will declare the termination of the contract by paying compensation equivalent to thirty-three days of salary per year of service with a limit of twenty-four monthly payments.

l. Owing to the disciplinary dismissal of the worker

The employer must exercise its disciplinary power in accordance with the provisions of the applicable collective bargaining agreement, which usually details the grading of the offences and their attendant sanctions.

However, the law includes the following behaviours as contractual breaches by the worker:

• Repeated and unjustified absences or lack of punctuality at work.
• Lack of discipline or disobedience at work.
• Verbal or physical offences to the employer or to the people who work in the company or family members who live with him.
• The violation of contractual good faith, as well as the abuse of trust in the performance of work.
• The continued, voluntary decrease in normal or agreed work performance.
• Habitual drunkenness or drug addiction if they have a negative impact on work.
• Harassment due to racial or ethnic origin, religion or beliefs, disability, age or sexual orientation and sexual harassment, or owing to gender, of the employer or people who work at the company.

Disciplinary dismissal must be communicated in writing, detailing the facts justifying said decision, as well as its effective date. 

In the event that the worker has the status of legal representative of the workers, a disciplinary hearing must be processed prior to his dismissal at which, in addition to the person concerned, the remaining members of the representative body to which he belonged will be heard. If the employer is aware of the worker's trade union membership, it must give a prior hearing to the delegates of the trade union section to which he belongs.

m. By way of a decision of a worker who is forced to permanently leave his/her job as a result of being a victim of gender violence or sexual violence.

Dismissal category

The termination of the employment contract at the request of the employer may be challenged before the labour court by the filing a lawsuit by the person concerned. The claim must be filed within the expiry period of twenty business days, requiring the prior submission of the attendant conciliation ballot to the Mediation, Arbitration and Conciliation Unit of Asturias.

In the Principality of Asturias there are Mediation, Arbitration and Conciliation Units in the following locations: Oviedo, Gijón, Avilés, La Felguera and Mieres.

As regards the labour courts, they can be found in Oviedo, Gijón, Avilés and Mieres.

The dismissal will be classified by the competent judge as:

• Admissible: the admissibility of the dismissal will be declared when the grounds on which the employer justified the termination and compliance with the formal requirements provided for in the law are proven.
• Inadmissible: when the formal requirements provided for in the law or in the collective bargaining agreement have not been respected or the grounds that justified the termination has not been proven.

Effects: the employer will have to choose within 5 days between

• Reinstating the worker and paying him the wages lost as from the date of dismissal until his reinstatement.
• Paying compensation equivalent to 33 days of salary per year of service, with periodsshorter than one year being calculated by month, with a limit of 24 monthly payments.

(*) In accordance with the provisions of the Eleventh Transitional Provision of the Workers' Statute, compensation for unfair dismissal under contracts formalised prior to 12 February 2012 will be calculated at a rate of forty-five days of salary per year of service for the time of provision of services prior to said date, assigning on a pro rata basis by months the periods of time less than one year, and at a rate of thirty-three days of salary per year of service for the subsequent time rendering services, also assigning on a pro rata basis by months, periods of time of less than one year. The resulting compensation amount may not be greater than seven hundred and twenty days of salary, unless the calculation of the compensation for the period prior to 12 February 2012 results in a higher number of days, in which case this amount will be applied as a maximum, without said amount ever exceeding forty-two monthly payments.

The choice will be made by the worker when he has the status of legal representative of the workers.

• Void dismissal: when the grounds are a case of discrimination prohibited by the Constitution or by law, or if it occurred in violation of the fundamental rights or public freedoms of the worker. Likewise, the termination decision will be void in the following cases:
  • That of workers during periods of suspension of the contract due to birth, adoption, custody for the purposes of adoption, foster care, risk during pregnancy or risk during breast-feeding, illnesses caused by pregnancy, childbirth or breast-feeding or those notified on a date such that the term of notice granted ends within said periods.
  • That of pregnant workers, from the date of pregnancy to the beginning of the suspension period.
  • That of workers who have requested breastfeeding leave, leave for the birth of a premature child or who must remain hospitalised after giving birth, a reduction in working hours for child or family care or are enjoying them or have requested or are enjoying leave of absence to care for a child or family member.
  • That of female workers who are victims of gender violence or sexual violence for the exercising of their rights.
  • That of workers who have requested or are taking leave owing to accident, hospitalisation, serious illness or surgical intervention of family members or cohabitants.
  • That of workers who have requested or are enjoying the right to adapt their working hours to care for family members or cohabitants provided for in article 34.8 of the Workers' Statute.
  • That of workers during the enjoyment of parental leave provided for in article 48 bis of the Workers' Statute.

However, the above presumptions will not be applicable when the admissibility of the termination decision is declared for reasons unrelated with pregnancy or with the exercising of said paid leave and leave of absence.

Effects of nullity: the employer must reinstate the worker and pay him the wages he should have received as from the date of dismissal until reinstatement. It is common for older people to request payment of compensation for moral damages resulting from the violation of the fundamental rights of the worker.