Objective dismissals against justified work absenteeism
There is no doubt that absenteeism is today one of the most serious problems in the business sector for various reasons.
The first of them is due to a decrease in market competitiveness due to the low productivity that it generates, the second being of a nature economical.
absenteeism is understood as “any absence of a person from their job, during hours that correspond to a working day”
The most frequent causes of work absenteeism are generated by temporary disabilities (whether due to common contingencies or occupational accidents/diseases), being also computable as such any situation that prevents you from appearing at the workplace, such as an appointment to renew the DNI, accompanying your child to the doctor, or even a breakdown in public transport.
The setbacks that this entails for the business sector are true and real; as is the possible abuse that in some cases occurs by depending on which employees (“fraudulent absenteeism”).
We cannot ignore that when a worker is on temporary disability, he continues to receive a salary paid by the employer, at least from the 4th to the 15th day, maintaining the obligation to contribute until the 545th day without that worker being productive while his sick leave lasts, the percentage of that contribution being an average of 31% of his regulatory base.
This can add to the business cost if replacement is necessary with a new hire or, otherwise, the deterioration of the work environment if tasks are transferred to another colleague who is increases your workload.
In the same way, we cannot ignore the right of the worker not to be in an optimal situation to carry out his work activity with due effectiveness and efficiency or that this implies the performance of a Extraordinary effort, a hard worker who, without a doubt, and in each of his payrolls, has been withholding 4.7% of his regulatory base for Common Contingencies (illness).
Assessing the above and since the dismissal of a worker in an IT situation was considered Null, and the employer was obliged to reinstate him, there have been various modifications to the articles trying to mediate between the right of the worker to be absent from his job in a justified manner, and the need for the company to reduce the negative effects that absenteeism, even justified, causes.
This is how it is written in article 52.d) of the Workers Statute in its wording given by Law 3/2012, of July 6, on urgent measures to reform the labor market, in which, far from declaring the dismissal of a worker in a situation of temporary disability null and void, articulates it as an objective cause of extinction in which, verifying the quantitative requirements that are established and scrupulously complying with the exceptions that are provided for the purpose of safeguarding the rights of workers, allows the termination from the labor contract with payment to the worker of 20 days of salary per year of service, in the form, with the effects and requirements that are established for dismissal for reasons objective (written communication stating the causes, making the established compensation available to the worker simultaneously with the delivery of the termination letter and granting-or paying-a 15-day notice period).< /p>
As a quantitative requirement:
Absences from work, even justified but intermittent, must reach:
- 20% of business days in two consecutive months provided that the total number of absences in the previous twelve months reaches 5% of business days, or
- 25% in four discontinuous months within a twelve-month period.
As exceptions, they will not be counted as absences:
- Absences due to legal strike for the duration of the strike
- The exercise of activities of legal representation of the workers.
- Work accident,
- Maternity, risk during pregnancy and lactation, diseases caused by pregnancy, childbirth or lactation, paternity.
- Leaves and vacations.
- Illness or non-occupational accident when the leave has been agreed by the official health services and lasts for more than twenty consecutive days.
- Nor those motivated by the physical or psychological situation derived from gender violence, accredited by social care services or health services, as appropriate.
- Absences due to medical treatment for cancer or serious illness.
As an Exception to the Exception, article 52.a) establishes another reason for the dismissal to materialize for objective reasons, basing these on the “< em>ineptitude of the worker known or occurring after his effective placement in the company”.
This means that in the event that the Temporary Disability exceeds 20 consecutive days and cannot be adjusted to the previous objective cause of extinction, but that at the same time denied the declaration of permanent disability or the challenge of the medical discharge, this fact would not determine by itself that he has the aptitude for the correct performance of his work activity in relation to the functions he had been carrying out, and in such cases can be validly extinguished the employment contract based on ineptitude when he is “incapable of carrying out his ordinary work, provided that the illness is after the date he started work”
It is clear that we must take into account the circumstances, both personal and family, as well as economic and social, of each of the people who make up the human resources of the companies to which they work. , according to the above, the current regulations enable dismissal due to work absenteeism in order to find a balance between the rights of some and the organizational causes of others, thereby prosecuting fraudulent absenteeism and the free low productivity that causes so much damage to companies and their human resources.
05/01/2017
