Reinstatement as a result of unfair dismissal

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

Article 56 of the Workers' Statute reads 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 reinstatement of the worker or 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 termination of employment.”

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

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

Since the sentence is notified, the company has a period of five business days to expressly communicate the decision it will opt for.

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 can notify its 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 that the company.
chooses

What does reinstatement to the job entail?

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

As 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, has the right to have the vacations that he 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 effective reinstatement in the company.

If the worker has received compensation for dismissal, he must return it.

It is important to know that in this case, reinstatement must occur by reestablishing the same conditions that the worker had before the dismissal occurred. In the event that this is not the case and the company opts for reinstatement but imposes different conditions, the 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.

The worker will not be able to refuse reinstatement as long as it is under the same conditions, since if he does so it will be taken into account as if it were a voluntary resignation.