When are processing salaries paid and what is their amount?
Until now, and after the reform introduced by the Royal Decree Law 3/2012, of February 10, processing wages are only mandatory when the nullity of the dismissal is declared and the employer must reinstate the worker.
In the unfair dismissal, as a general rule, it is the employer who chooses between reinstating the worker or compensating him. However, for the company it is still not clear the exact budget where the processing salaries have an incidence.
Processing wages: concept
Processing wages are the amounts that the worker stops receiving from the date of dismissal or termination of the contract until notification of the judgment declaring the inadmissibility or until he has found another job.
In the latter case, if such employment was prior to the judgment declaring the dismissal unfair or invalid and the employer proves what he received in his new job, it can be deducted from the processing wages while the judicial procedure is being processed and provided that the employer opts for reinstatement.
The fact that the employer has offered the worker reinstatement in the prior conciliation act (in the SMAC) does not interrupt the accrual of processing wages.
When the unfairness of the dismissal falls on a temporary contract, the processing wages will only be extended until the expected date of completion of the temporary contract, that is, until the end of the term agreed in the temporary contract.
It is necessary to know that processing wages are compensatory in nature, therefore they are excluded from joint and several liability that may arise between contractors and subcontractors.
In the same way, in the case of senior management contracts, the exception is established by not accruing processing salaries in the event of dismissal, this means that they will not generate the right to vacations or any other accrual of amounts unless this is expressly agreed in contract.
What is the amount?
The amount will be the result of multiplying the worker’s daily salary by the number of days elapsed from the date of dismissal to the date of notification of the sentence.
The regulatory salary to be taken into account will be the one that the worker would receive at the time of dismissal.
In cases of workers in a situation of reduced working hours at the time of dismissal, the salary to be taken into account for the determination of the basis for calculating processing salaries, will be that corresponding to that reduced working day unless it derives from the birth of a child, the legal guardian of a minor under twelve years of age or victims of gender violence or terrorism.
For the purposes of calculating the basis for calculating processing salaries, the following rules must be taken into account:
- Salary increases subsequent to the dismissal are excluded from the calculation basis, although the increases established in the agreement with retroactive effects must be included (even if the publication of the agreement is after the dismissal).
- IT periods after the dismissal are excluded, although the worker may claim the supplement to which the employer may be obliged.
- The employer must contribute for the processing wages.
- Unemployment benefit collected during the wage processing period must be taken into account. For this purpose, the company must discount the unemployment benefit collected by the worker from the processing wages and return the corresponding amount to the State Public Employment Service.
Situations in which processing wages can be received
In conclusion, the situations in which the employer must pay the processing wages are the following:
- Dismissal declared unfair and opting for the reinstatement of the worker: the processing wages are equivalent to an amount equal to the sum of the wages not received from the date of dismissal until notification of the judgment that he declared the inadmissibility or until he had found another job, if such placement was prior to said sentence and what was received was proven by the employer.
- Dismissal declared unfair when the worker is a union delegate or legal representative of the workers: in this case, the representative or delegate will be entitled to processing wages whether he opts for reinstatement or for the compensation. In the unfair dismissal of a union representative or delegate, it is the latter who opts for compensation or reinstatement, and not the company.
- Void dismissal: nullity of the dismissal implies the immediate reinstatement of the worker and the payment of wages not received.
Assumptions of discount in processing wages
The following concepts can be deducted from the processing wages to be paid to the worker:
- The amounts received by the worker in another job, whether employed or self-employed.
- The amounts received by the worker as unemployment benefits must be paid to the State Public Employment Service.
- The amounts received as temporary disability after the termination of the employment contract, which will be deducted but the worker may claim the salary differences if any
When the amounts to be deducted correspond to those received in another job, the employer will be in charge of proving that the placement has occurred prior to the date of the sentence and the amounts received by the worker.
Finally, to carry out such a test, it is enough to request the Court to require the worker to provide the pay slips and request the General Treasury of the Social Security (TGSS) to submit a report on the contribution bases and the Work Life Report.
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