Types of severance payments
At the moment a worker is dismissed, the first thing to do is to become aware of the type of dismissal he is facing (See: Differences between objective dismissals and disciplinary dismissals).
Once we know the type of dismissal we are facing, we will be able to better understand the possible compensation that we can claim and in what amount, extreme that we are going to explain throughout said article, the method of calculating it being the subject of another article.
Types of severance payments
Then we establish the different types of compensation to which any worker is entitled in response to the type of dismissal that we find:
Target severance pay
Regardless of the cause before which we find ourselves, the worker will have the right to receive compensation of twenty days per year of service, prorating by months the periods of time of less than one year and with a maximum of twelve monthly payments at the time the dismissal is notified, which is not the same as the effective date, although it may coincide.
The only exception in relation to this point can be given in those cases in which we are faced with an objective dismissal for economic reasons and that as a consequence of the same, the compensation indicated at the time of notifying the dismissal cannot be made available to the worker.
However, the obligation to pay the compensation will exist at the time the dismissal is effective.
Severance pay for disciplinary dismissal
In this case the workers do not have the right to receive any compensation provided that the dismissal is considered fair or in the event that the worker does not file a claim against the company within 20 business days from the date the dismissal took effect. (Read: Deadlines to bring actions in labor matters)
It is necessary to highlight that it is the Social Court who has the last word to declare that the cause used by the company for the dismissal is appropriate, hence always It is advisable to consult with a labor lawyer who is a specialist in the matter in order to raise a lawsuit against dismissal.
Indemnities in response to the dismissal classification according to a court of social jurisdiction
Regardless of whether we are facing an objective or disciplinary dismissal, whenever we file a claim against it, it will be Court of the Social who determines the final qualification of the dismissal, in which case the worker will be entitled to other types of compensation.
Below we present the compensation to which he will be entitled based on the qualification of the dismissal.
- Dismissal declared fair: The worker does not have the right to receive any additional compensation to the one already received, if any, at the time of dismissal.
- Dismissal declared unfair: In this case we must point out that within a period of 5 days from the notification of the sentence, the employer may choose between reinstating the worker in their former job with the payment of the salaries that were not received as a result of the dismissal until the date of reinstatement or, failing that, the payment of the severance pay. In the event that the payment of the indemnity is chosen, a difference must be made between employment contracts that were formalized or dated prior to February 12, 2012, and those that were dated after.
- For contracts prior to February 12, 2012: The worker is entitled to receive compensation equivalent to (i) 45 days of salary per year of service for the time of service prior to February 12, 2012, and (ii) 33 days of salary per year of service for the time of service after February 12, 2012.
In this case, the compensation amount may not exceed 720 days of salary (24 monthly payments). Now, if due to the time of provision of services prior to February 12, 2012, a higher number of days results, the indemnity limit would be the one accumulated to said date, with a maximum of 42 monthly payments.
In this case, the compensation amount may not exceed 720 days of salary (24 monthly payments). Now, if due to the time of provision of services prior to February 12, 2012, a higher number of days results, the indemnity limit would be the one accumulated to said date, with a maximum of 42 monthly payments.
- For contracts formalized after February 12, 2012, the compensation for unfair dismissal will be 33 days of salary per year of service, up to a maximum of 24 monthly payments.
It is necessary to point out that in cases where the worker has already received a compensation amount at the time of dismissal, as occurs in the case of objective dismissals, said amount must be subtracted from the final compensation for the inappropriateness.
Dismissal declared void
In these cases the worker will be reinstated immediately and automatically in their former job, receiving the processing wages not received from the moment in which the dismissal occurred until its reinstatement.
Compensation negotiated or agreed
In this article we have established the compensation amounts that are included in the labor legislation for each case, however, it should be noted that negotiation after dismissal between companies is quite common and worker through their lawyers, in which another compensation amount can be set. The raison d’être of said negotiation, which is legally valid and whose terms must be reflected before the competent bodies, is given by the fact of avoiding a future lawsuit in which neither of the two parties (company and worker) have assured a judgment in favor of their interests.
The compensation amounts that are finally paid, as long as they are within the limits expressly set forth in the law, will be exempt from taxation and contribution. Any other amounts that exceed said limits, on the contrary, must be subject to taxation and contribution.
12/02/2018
