Reinstatement as a result of unfair dismissal

Key aspects to know when faced with an unfair dismissal and what the workers' rights are.

Article 56 of the Workers' Statute states in point 1,"When the dismissal is declared unfair, the employer, within a period of five days from notification of the ruling, may choose between the reinstatement of the worker or the payment of compensation equivalent to thirty-three days of salary per year of service, prorating by month the periods of time less than one year, up to a maximum of twenty-four monthly payments. The option for compensation will determine the termination of the employment contract, which will be deemed to have occurred on the date of effective cessation of work."

When this happens, it is the company that has the right to decide whether to reinstate the worker or pays him the corresponding severance pay, therefore the worker must abide by the decision of the company.

When these situations occur,companies They usually choose to compensate the worker, except in some cases in which very high compensation is appropriate.

Since they were notified of the sentence, the company You have a period of five business days to expressly communicate the decision you are going to make.

In the event that the company does not express itself within that period and does not expressly notify that it opts for compensation, it is understood that it opts for reinstatement. It cannot be tacitly understood that the company has opted for compensation.

The company You can notify your decision to the corresponding social court in the following ways:

• Notify it at the trial before the sentence is handed down.
• Appearing at the corresponding court office so that the business decision is recorded.
• Presenting a document to the corresponding court, expressly indicating in that document the option for which the company.

What does readmission to the job entail?

In the event that readmission has been the option chosen, the company must notify the worker the date on which you must return to your job. The deadline for this communication is a maximum of ten days following notification of the ruling.

Since reinstatement has been chosen, it would be interpreted as if the dismissal had never existed, so the worker During the time that the judicial procedure has lasted, you have the right to have the vacations that you would have accrued during that time counted as generated.

The company must pay the processing salaries that have been accrued during the time that the judicial process has lasted and until the effective reinstatement in the company.

If he worker would have received compensation for the dismissal must return it.

It is important to know that in this case, readmission must occur by reestablishing the same conditions that the worker before the dismissal occurred. In the event that this is not the case and the company opt for readmission but impose different conditions on worker may challenge the business decision alleging that an irregular reinstatement has occurred. If this were to occur, the worker will have the right to termination of the employment relationship and compensation for this reason.

He worker You will not be able to refuse reinstatement as long as it is under the same conditions, since if you do so it will be taken into account as if it were a voluntary withdrawal.