Termination of the Senior Manager’s contract by the will of the employer
The Senior Manager can see his contract terminated either by his own will, or by the will of the employer, this second point being the one that concerns us in this article.</ p>
Termination of the Senior Manager’s contract by the will of the employer. Dismissal or withdrawal.
The employer can terminate the employment contract of the Senior Manager either by withdrawal, without the need for any cause, but simply by the mere will of the same , or through dismissal, whether disciplinary or objective.
In both cases the employer must respect the legally established formalities and determine in the notice of termination, without a doubt, what type of termination we meet.
Here we explain each of the types of extinction and its main consequences:
Unilateral withdrawal by the employer
Due to the special relationship of trust that unites the figure of the Senior Manager with the employer, the possibility of the latter unilaterally desisting from the homeless contract has been legally included any that justifies it, understanding that the professional trust that gave rise to the employment relationship no longer exists regardless of the reason that originated it.
The only limits indicated by our courts are respect for the fundamental rights indicated in the Spanish Constitution, especially in relation to any type of discrimination.
In these cases, the courts declare the extinctive decision as null and void, the main effects of which are the reinstatement of the Senior Manager together with the payment of the salaries left to perceive from the moment the extinction occurred until the moment of reinstatement.
For the formal withdrawal requirements to be met, the following milestones must occur:
- Written communication clearly establishing that it is a unilateral withdrawal, although it is true that on certain occasions verbal withdrawal has been allowed when it is completely clear to the parties.
- A minimum notice of 3 months is established, although it can be extended up to 6 months, as long as it has been established in writing in contracts entered into for an indefinite period or for a duration of more than five years.
- The indemnity agreed in the contract or in the golden parachute clauses must be delivered or, in the absence of an agreement, the legal indemnity of 7 days of salary per year of service, with a limit of 6 monthly payments. When calculating the salary, special attention must be paid to any type of social benefit or bonus to which he was entitled, as long as it was in cash.
In the event that the notice period is breached, in whole or in part, the Senior Manager may claim not only the compensation to which he has legally entitled, but also compensation equivalent to the salaries corresponding to the duration of the unfulfilled period.
The Senior Manager has a period of 20 business days to file a claim in the event of a withdrawal by the employer, since it has the same treatment as if a dismissal in question Therefore, the advice of a lawyer specialized in the matter is essential from the first moment the withdrawal occurs.
Dismissal of Senior Manager
The employment contract of the Senior Manager may be terminated by decision of the employer through disciplinary dismissal based on the serious and culpable breach of the Senior Manager.</p >
This serious and culpable breach will be, in any case, in relation to the causes that have been established in the employment contract itself, as well as some of those provided for in art. . 54 of Workers Statute< /a> for the rest of the ordinary employees, such as indiscipline or disobedience, verbal or physical offenses, the transgression of contractual good faith, as well as the breach of trust, the continuous and voluntary reduction in the normal performance of the work, the habitual drunkenness or drug addiction if it affects work, or harassment for reasons of racial or ethnic origin, religion or convictions, disability, age or sexual orientation, and sexual or gender-based harassment of the employer or people who work in the company
The contractual breaches previously exposed should be applied with nuances in the case of Senior Managers, since it is necessary to take into account that this type of relationship is It is mainly based on mutual trust between the parties, being the essential core of the same, so its loss in itself implies the absolute rupture of the link, not applying the gradualist theory in the vast majority of cases as if it occurs in ordinary labor relations.
Despite the fact that the Royal Decree that regulates the special relationship of Senior Management does not expressly include the possibility of objective dismissal, said option has already been endorsed by the courts, based on their own objective causes applicable to ordinary workers.
Companies use this type of dismissal on occasion to avoid having to pay the compensation inherent to golden parachute clauses or those that had been agreed in contract in case of being higher if they were expressly excluded in case of objective dismissal.
The dismissal letter must be notified to the worker in writing, stating the facts that motivate it and the date on which it will take effect.
The Senior Manager has a period of 20 working days to file a claim before a dismissal, which makes essential the advice of a lawyer specialized in the matter from the outset.< /p>
Qualification of dismissal by a court
The court hearing the dismissal may qualify it in one of the following ways:
- Applicable: The Senior Manager does not have the right to reinstatement or any compensation, unless it has been expressly established in the contract or in the case of objective dismissal, he or she will be entitled to a fixed compensation of 20 days from Salary per year of service, with a limit of 12 monthly payments.
- Impropriate: The employer and the Senior Manager will agree on whether to reinstate or pay the financial compensation provided for in the contract or, failing that, in the Royal Decree regulating the relationship of Senior Management, understanding in case of disagreement, that the payment of the economic perceptions is chosen. The Senior Manager will have the right to receive the compensation that would have been legally agreed upon in cases of impropriety. If there was no agreement in the contract, the amount will be calculated at the rate of 20 days of salary in cash, per year of service, with a maximum of 12 monthly payments.
In the case of objective dismissal, there has been some judicial pronouncement that considers that the same compensation cannot be applied in the event that it is considered appropriate as unfair, and that of unfair dismissal should be applied to ordinary workers, however said position is not clear.
- Void: The dismissal may be declared void when it has occurred with a violation of fundamental rights or for discriminatory motives. In accordance with the Royal Decree that regulates the relationship of Senior Managers, the effects of nullity are the same as the declaration of inadmissibility, without prejudice to possible additional compensation for damages in response to the specific violation that has occurred. However, we must be aware that there have already been several courts that understand that despite said literalness, the annulment must entail the reinstatement of the Senior Manager together with the payment of the salaries not received from the moment the extinction occurred. until time of readmission.
Action before dismissal or withdrawal
As can be deduced from everything previously mentioned, the advice of a labor lawyer specialized in the matter who can analyze all the causes that have affected the extinction is essential. of the contract, as well as the communications made in order to devise a negotiation strategy and preparation of the demand in time with the objective of defend the rights of Senior Managers.