Unjustified dismissal is the termination of the employment relationship of a worker by exclusive decision of the employer and without having a just cause; that is to say, without their having been a bilateral agreement of wills as occurs in resignation and without there being malicious reasons caused by the employee as occurs in justified dismissal. Likewise, a dismissal is considered unjustified dismissal when the employer terminates the employment relationship for any of the valid reasons, but fails to notify the worker of this, either personally or through the Conciliation Board, since this is a legal requirement to formalize the termination.
In California, wrongful termination meaningis a claim filed in the courts when a worker thinks they have been fired illegally from their place of employment. A claim for illegal dismissal such as this can also be fired when an employee believes that their termination was based on a complaint they have made, sexual harassment, or a worker’s compensation claim. If, for example, a worker complains about sexual harassment or another type of discrimination and they are fired, they are also eligible to file a claim for wrongful dismissal.
Claim in the labor inspection and subsequent steps
The claim for unjustified dismissal is an alternative option or a previous step to the demand that is made before the Labor Inspection when there is an unjustified dismissal. Its final objective is that the Labor Inspectorate, in its conciliatory function, propose an agreement between the worker and the employer, and thus avoid a lawsuit.
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 follow 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 in the same way as these, and in the second case the procedure may end in disagreement, or later the worker may decide to file a lawsuit for unjustified dismissal.
In the case of an unjustified dismissal, as a worker you have the right to compensation. If it is a voluntary withdrawal, you will only be given the benefits that the company still has pending with you. However, something in common that either of the two forms of termination of employment maintain is the maximum term of payment for settlement, which is 48 hours.
How does the unfair dismissal process work?
For different types of layoffs, the personnel termination process follows a very similar structure. These changes first concern which workers are and are not entitled. Next, we will present step by step how the process of dismissal without just cause works. Look!
Early warning
As described in this article, in case of dismissal without just cause, the worker is entitled to receive notice of dismissal 30 days in advance.
In practice, after the decision to terminate the contract, the employer must allow the employee to remain in the company for 30 days or more, depending on the length of service.
If there is a desire that the employee does not remain in the company during this period, an alternative is to indemnify him to maintain his right to stability while looking for a new job.
Contract termination term
In any case, in the process of dismissal without just cause, HR must provide three copies of the term of termination of employment contract.
In addition, it also provides information about the contract, including the date of entry and termination of the worker, as well as a record of all payments made.
Resignation exam
As in the case of hiring new employees, as a result of the termination of the contract, HR must also ensure that the employee undergoes a medical examination.
The dismissal examination aims to attest to the health of the worker to ensure that he does not suffer from an occupational disease or other condition that does not guarantee him stability. This allows the company to be sure that the dismissal process does not open up gaps for possible labor action.
