Unjustified Dismissal

Wolfenson Lawyers provides legal advice and support to their clients in the event that they have suffered an unfair dismissal.

In labor relations, as in any human relationship, various situations occur that lead to their breakdown, making the coexistence of those involved impossible, it is for this reason that in the workplace there are figures such as dismissal and resignation that are intended to end the employment relationship in certain cases.

 

However, these legal tools can be used to endorse unlawful situations that are detrimental to the worker, this is the case of the so-called unjustified dismissals, that is, those dismissals that are not properly based on any of the causes that the current labor legislation estimates coming for these purposes. It is in this way that our Firm focuses its professional work on protecting the rights of our clients in the event that they have suffered an unjustified dismissal.

Here is a legal guide to provide you with guidance on wrongful termination:

What is wrongful termination?

The unjustified dismissal is one in which the worker considers that the cause applied by the employer to dismiss him , is based on facts that are not effective or on the needs of the company that are questionable or non-existent.


What are the grounds for termination of the employment contract?

In our legal system the grounds for dismissal are contemplated in articles 159, 160 and 161 of the Labor Code , and are the following:

  • Mutual agreement of the parties.

  • Resignation of the worker.

  • Death of the worker.

  • Expiration of the term agreed in the contract.

  • Conclusion of the work or service that gave rise to the contract.

  • Fortuitous event or force majeure.

  • Any misconduct of a serious nature, duly verified, such as:

    • Lack of probity of the worker in the performance of his duties;

    • Sexual harassment behaviors.

    • Acts of fact exercised by the worker against the employer or any worker who works in the same company.

    • Injuries proffered by the worker to the employer.

    • Immoral conduct of the worker that affects the company where he works.

    • Harassment behaviors.

  • Negotiations that the worker executes within the business and that have been prohibited in writing in the respective contract by the employer .

  • Non- attendance of the worker to his work without just cause for two consecutive days, two Mondays in the month or a total of three days during the same period of time; likewise, the unjustified absence , or without prior notice on the part of the worker who is in charge of an activity, task or machine whose abandonment or stoppage means a serious disturbance in the progress of the work.

  • Abandonment of work by the worker, understood as such:

    • The untimely and unjustified departure of the worker from the slaughter site and during working hours, without the permission of the employer or his representative.

    • Refusal to work without just cause in the tasks agreed in the contract.

  • Reckless acts, omissions or recklessness that affect the safety or operation of the establishment, the safety or activity of workers , or their health.

  • The material damage intentionally caused in the facilities, machinery, tools, work tools, products or merchandise.

  • Serious breach of the obligations imposed by the contract.

  • Company's needs.

What can I do if I consider my dismissal unjustified?

If the worker's dismissal occurs for reasons for which the worker is responsible, for example: abandonment of the workplace , lack of honesty in the performance of their duties , negotiations that the worker executes within the scope of the company and that have expressly prohibited , etc. The worker is not entitled to receive any type of compensation nor the employer to give prior notice . On the other hand, if we are facing causes not attributable to the worker , such as the needs of the company, for example, in this case the worker does have the right to compensation , as the employer must also give prior notice , unless it replaces the prior notice indemnifying the employee.

What is the Labor Inspection?

It is a public body that was created with the purpose of monitoring compliance with labor and pension regulations regarding workers. Each inspection office is headed by a labor inspector , and its main functions are to attend to user queries and complaints; go to workplaces to inspect compliance with labor and pension regulations ; apply sanctions to employers in case of non-compliance; mediate in cases of conflict between workers and employers , among others.


Claim at the labor inspection and subsequent steps?

There is a procedure before the labor inspection that we could consider as an alternative or a previous step to the demand for unjustified dismissal , this is the so-called claim for unjustified dismissal and that has as its final objective that the labor inspection in its conciliatory function proposes a agreement between worker and employer , in order to avoid trial . In this procedure, and once the claim is made, both the worker and the employer will be summoned to a hearing with the inspector so that the employer can explain the reason why the cause applies, and then a possible agreement is discussed. Now the paths that can happen to the claim will be different, since this will depend on whether an agreement is reached or not, in the first case the agreement reached will have the validity of a sentence , for which it must and can be fulfilled as well as these, and in the second case the procedure may end in disagreement , or later the worker may decide to file a lawsuit for unfair dismissal.


How can I be affected if I do not attend the labor inspection?

The fact of not going through this process means that there will be no stage of extrajudicial mediation with the employer , considerably reducing the possibilities of agreement . However, the aforementioned, this does not imply that the lawsuit can be filed later, nor to subsequently reach an agreement. Another disadvantage of not proceeding through this path is that the claim before the inspection suspends the term (60 days) that exists to sue for wrongful dismissal , and also, if the agreement fails, the term increases from 60 to 90 days, which will be computed from the day the dismissal occurred.


Can I sue for wrongful dismissal without going to the labor inspection?

When the labor legislator contemplates the action to demand the unjustified dismissal in article 168 of the Labor Code , it does not indicate as a prerequisite the claim before the labor inspection , so this prior procedure is not strictly necessary, although it is absolutely recommended , mainly to try to avoid a trial and all the expenses that it implies.

The advance notice letter.

According to the definition given by the work address itself, the prior notice letter is the communication that the law requires the employer to make known to the worker the end of the employment relationship . From the definition set forth, we can conclude that this letter is obligatory for the employer , regardless of the cause that supports the dismissal of the worker , and that therefore its omission may have legal consequences for the employer.

 

What should I look for when signing the letter?

What must be taken into account when signing the letter is that it must contain the legal reason for termination of the contract that the employer considers concurrent to support the dismissal , in addition to the facts on which it is based, as well as must inform about the status of payment of social security contributions , attaching the corresponding vouchers.


What if I don't want to sign the dismissal letter?

The fact of signing or not the dismissal letter does not affect the rights of either the employer or the worker, the first because at the time of sending the dismissal letter to the worker , you must also send a copy of it to the labor inspector , and of the 2nd because signing the letter does not imply acceptance of the cause that is being applied to me, but only records the receipt of the notice , so that the worker retains all the rights to demand the unfair dismissal if he deems it so convenient.


How do I demonstrate my disagreement with the prior notice letter?

If the dismissed worker does not agree with the dismissal letter , especially with the cause that applies to dismiss him, he has the right to claim the unfair dismissal before the labor inspection , or directly through a lawsuit in the labor courts .

What is the settlement?

The termination is an act by which a worker who has been dismissed , and the employer of the same approve before a minister of faith , the termination of the employment relationship and its agreement with the provisions of a document that also carries the name of termination and in which includes the applied dismissal grounds, the agreements to which the parties undertake, and the amounts that the employer must pay the worker for compensation , holidays , etc.

 

What do I have to pay attention to when reviewing the settlement?

At the time of signing the settlement, it is extremely important to determine, in the applied cause, the amounts of the compensation , the payment of overtime due, the compensation for lack of prior notice (if applicable), the payment of the daily contributions , liquidation of existing credits between the employer and the worker and the date of signature of the settlement.


What can I do if I am not satisfied with the settlement?

If for any reason, it has to do with the grounds invoked for the dismissal, with the amounts of the compensation , with unrecognized rights , I do not agree with the settlement proposed by the employer, we must not sign it, and then we must concur to the respective labor inspection to claim our disagreement, stating the reasons for it. It is extremely important to note that the fact of not signing the settlement does not prevent us from being paid the compensation established therein, since the law mandates that the employer must make the settlement payment available to the worker within 10 business days , counted from the end of the employment relationship , money that the worker may not receive, however, until he signs the settlement.

 

Compensation for unfair dismissal?

As we have already explained, when a worker considers that he was unjustifiably dismissed , he has the right to claim at the labor inspectorate , or to go straight to a court to file a claim for unfair dismissal . But what if the court upholds our lawsuit ? In this case, in the sentence beyond recognizing that the cause is wrongly applied, all the compensation that the worker may receive will be calculated , in addition to overtime that is owed, legal holidays accrued, etc. In addition to the surcharges on the compensation that come in accordance with article 168 of the labor code.


What is compensation for unfair dismissal?

Based again on article 168 of the Labor Code , the compensation that comes in the event that an unjustified dismissal is declared are:

  • Substitute compensation of prior notice (article 162 subsection 4 of the Labor Code ): It consists of a compensation that the employer must pay to the worker who replaces the prior notice letter , the amount of which will be equivalent to the last remuneration received by the employee.

  • Compensation for years of service (article 163, subsection 1 or 2 of the Labor Code ): This compensation consists of an amount equivalent to 30 days of the last monthly remuneration earned, for each year of service and fraction exceeding six months, provided continuously in the company. This compensation has a maximum limit of 330 days of remuneration - that is, 11 years of service.


Sanctions in case the dismissal is considered unjustified?

Article 168 of the Labor Code contemplates a fine or sanction in case the dismissal is declared unjustified , which consists of a surcharge that is made on compensation for years of service , as follows:

  • Thirty percent, if it had been terminated by improper application of article 161;

  • Fifty percent, if the term had been given for unjustified application of the grounds of article 159 or no legal cause had been invoked for said term;

  • Eighty percent, if it had been terminated due to improper application of the causes of article 160.

 

Steps to demand wrongful dismissal?

Below we will briefly explain the way forward to demand the unfair dismissal.


What are the steps to file a Labor lawsuit?

The first thing will be to be clear about the kind of action that we want to initiate, but beyond this, there are not many prerequisites to sue , this since the general rule in labor lawsuits is that conciliations occur with the trial already started.


What is the trial for unfair dismissal?

In this trial, the main discussion will focus on debating whether the cause for which the worker was terminated is in accordance with the law or not, but also tangentially will also discuss issues such as overtime owed, pending employer credits granted to the worker , among other matters.

What are the stages and deadlines of the labor trial?

The stages of the labor procedure can be summarized as:

  • Discussion stage , which includes the demand and the answer to the demand.

  • Preparatory hearing.

  • Trial hearing.

Regarding deadlines , we can highlight:

  • The preparatory hearing must be held within 35 days after the resolution that follows the lawsuit.

  • The resolution that follows the complaint must be notified at least 15 days in advance of the preparatory hearing.

  • The deadline to answer the complaint is up to 5 business days prior to the preparatory hearing.

  • The trial hearing must be held within a period not exceeding 30 days from the holding of the preparatory hearing.

  • The sentence can be passed by the judge at the end of the hearing, or within 15 days from the trial hearing.

What are the deadlines for suing if I find that my dismissal is wrongful?

The term to demand the unjustified dismissal is 60 days from the separation of the worker . However, it must be taken into account that if the worker has previously deducted a claim in the Labor Inspection, the aforementioned period will be suspended.

For the employer: good practices to avoid falling into unfair dismissals.

So that the employer does not fall into a situation that means a subsequent demand for unfair dismissal or for the invalidity of the dismissal , the following situations should always be taken into account:

  • Always send a prior notice letter , 30 days in advance of the day the contract ends.

  • In the event that for any reason the legal notice has not been given to the worker , pay the so-called substitute compensation of prior notice.

  • Keep up to date the payment of social security contributions.

  • When applying any of the grounds for dismissal of articles 159, 160 or 161 of the Labor Code , seek advice from a lawyer when the application of the same is unclear or difficult, in order not to make an error in the classification of The conduct.

  • Be especially careful when applying the cause of company needs of article 161 of the Labor Code.

  • Take into consideration workers who are subject to some type of jurisdiction or license , since a prior procedure must be followed for their removal .

  • Maintain overtime pay day.

  • Be careful that in obtaining evidentiary means such as voice or video recordings, photographs, statements from third parties, etc. Fundamental rights of workers are not violated.

If I am fired due to company needs, can I allege unfair dismissal?

Indeed, when the cause applied to the dismissal is that of the needs of the company , the unjustified dismissal can be demanded, the above in accordance with the provisions of article 168 of the labor code.  

They accused me of something I did not do in my workplace and fired me. Is it unfair dismissal?

As we could see previously, within the grounds for dismissal, the vast majority refers to worker behavior , but that on many occasions may not be effective, if not invented by the employer to get rid of a worker . In cases such as these we would be facing an unjustified dismissal , but it must always be borne in mind that the circumstances and behavior of the worker that make up the cause of dismissal must be proven in court by the employer.

 

If I work for a fee and I am fired without reason, is there a figure for unfair dismissal?

It has been a matter debated jurisprudentially if it is that the workers to fees can demand the unjustified dismissal . In short, until a few years ago, paid workers did not have this possibility, but for about two years, the Supreme Court, ruling in unification of jurisprudence , has declared the unjustified dismissal of paid workers as, for example, made in the causes role N ° 35.091-2017 and N ° 35.151-2017.

 

Can I collect unemployment insurance?

There would be no problem in collecting the insurance , as long as your cessation of functions in said company is properly credited .

Wolfenson Abogados provides excellent legal advice on unfair dismissal.

Links of interest on unfair dismissal in Chile :

1.- Labor Code

2.- Chilean Labor Directorate

Wolfenson Lawyers. Chile Law Firm.

If you need more information and legal advice regarding unfair dismissal, we invite you to contact our lawyers in Santiago. We are located at Avenida Apoquindo 2930 in the commune of Las Condes, Santiago de Chile.

Wolfenson
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Av. Apoquindo 2930 Las Condes, Santiago.
Email. contacto@wolfenson.cl  Phone. +56 2 2933 0384  Phone. +56 9 9884 1289