The dismissal of the worker for supervening ineptitude
The termination of the employment relationship due to sudden ineptitude is a type of target dismissal based on the incompatibility between the worker and the job
Concept and legal regulation
Given a lack of legal definition, ineptitude can be understood, as stated by the Supreme Court, as:
“«the disqualification or lack of professional faculties that has its origin in the worker, either due to lack or updating of knowledge, either due to deterioration or loss of work resources, speed, perception, dexterity, ability to concentrate… etc.”
In other words, it is the absence in the worker of the necessary conditions to adequately perform a certain job; as an inability, a lack of aptitude, preparation, sufficiency or suitability to carry out the provision of work in a useful and profitable manner (TS October 5, 1984 and May 2, 1990).
The specific reasons that can justify this dismissal are found in article 52 of the Workers’ Statute;
Section a) contemplates the “ ineptitude of the worker known or occurring after his effective placement in the company”. strong> p>
The ineptitude of the worker may be original, either due to events prior to the conclusion of the contract; or supervening, appeared after the start of the employment relationship. If it is original, that is to say, there is an ineptitude before the trial period or it arises during this period, sudden, it will not be cause for objective dismissal since the worker has passed a trial period and the employer will have the opportunity to assess the aptitude of the worker and freely withdraw from the contract.
The dismissal of the worker for not passing the probationary period will not be a cause of sudden ineptitude and may be dismissed for not adapting to the characteristics of the assigned position as long as the trial period agreed upon in the collective agreement or in the employment contract has not elapsed.
Temporary and Permanent Disability
The result of ineptitude is the inability to adequately perform assigned tasks.
This is similar to temporary disability, but they have their differences, since ineptitude is the cause of termination of the employment relationship, while < strong>temporary disability leads to incapacitation that has an end and is not cause for dismissal, but is cause for suspension of the employment contract (Art 45.1c ET).
For his part in the permanent disability the worker presents serious anatomical or functional reductions, susceptible to objective determination and foreseeably definitive, which decrease or annul their work capacity, therefore, it is cause for termination of the employment contract< /strong> (Art 49.1.e of the ET).
It is therefore necessary to distinguish between sudden ineptitude as a extinguishing cause and permanent disability in certain degrees article 49.5 of the ET), since the latter is defined by reference to the Social Security legislation and requires an administrative or judicial declaration. It is then a concept disconnected from that of physical or mental disability, produced as a result of any of the contingencies protected by Social Security. Sudden ineptitude refers, according to constant interpretation, to an inability or lack of professional faculties that has its origin in the person of the worker and also, as we have exposed, due to deterioration or loss of their work resources, perception, dexterity, speed (STS of 2-5-1990 ), which is different from the concept of disability, a situation that by itself allows contractual termination so that the termination of the contract can be declared for such cause when, as is the case, the worker does not reach none of the degrees of permanent disability in the degrees provided for in article 137 of the LGSS, however he is unable to carry out his ordinary work.” (Sentence of the TSJ of Catalonia of 06.23.2011). p>
The voluntary decrease in work performance
It is important to know, in the same way, the difference between oversold ineptitude and voluntary decrease in performance, since in the latter there is no ineptitude but a contractual breach strong> and the worker in this case is suitable but obtains defective performance, since ineptitude as extinctive cause must be associated with the absence of a guilty will of the worker.
In summary and by way of conclusion, it has been explained how sudden ineptitude is cause for termination of the employment relationship based on article 52.a) of the Workers’ Statute, differentiating it of temporary disability and voluntary decrease in performance, in this way each case must be meticulously analyzed to see what employment situation it is.
Position of employer
The ineptitude must be proven by the employer, corresponding to the worker the proof of his aptitude, or that it was known or consented to by the employer at the beginning of his hiring. “The ineptitude must be permanently attributable to the worker and affect the essential tasks of the work performed“. (STSJ Andalucía 2016).
In the event that the worker is incapable of performing functions other than the usual ones “as a consequence of functional mobility” (39.3 ET), the dismissal cannot be proceeded
For the dismissal to be declared admissible and to prove the sudden ineptitude of the worker, it is enough to have the mandatory report from the Mutual Company with which the control has been agreed occupational risk prevention. The Mutual Company’s unfitness must be enough to justify the dismissal, and there must also be an impossibility to adapt their job position.
Finally, it must be taken into account that the supervening ineptitude will justify the dismissal as long as it meets the following notes:
- True and not simulated.
- General: referring to the whole work and not to any of its aspects.
- To a certain degree: below-average aptitude for each time, place, and profession
- Referring to the worker and not to the material or work means.
- Permanent and not merely circumstantial.
- Referring to the contracted labor benefit and not to the performance of different jobs.
Martín Grande Ascaso
Labor Law Department