The grounds under article 54 of the Workers' Statute
Article 54.2 of the Workers' Statute sets out a closed list of grounds: repeated and unjustified absences or unpunctuality at work; indiscipline or disobedience; verbal or physical offences against the employer, the people who work in the company or family members who live with them; breach of contractual good faith and abuse of trust in the performance of the role; the continued and voluntary reduction of normal or agreed work performance; and habitual drunkenness or drug addiction when they have a negative impact on work.
Collective agreements usually grade such conduct as minor, serious and very serious misconduct and quantify the thresholds, for example the number of absences considered very serious misconduct. The cause must be real and demonstrable: a suspicion does not justify dismissal, a documented fact does.
Proportionality: not every breach justifies dismissal
Case law requires proportionality between the conduct and the sanction. An isolated instance of unpunctuality is not grounds for dismissal; repetition, reoffending or loss of trust can be. The context is assessed: seniority, the worker's prior record, the impact on the organisation and whether the conduct is repeated after a warning.
That is why it is advisable to document warnings and keep a record of incidents. An "express" dismissal, without prior history or specific facts, is the first candidate to be declared unfair, and with signs of discriminatory motive, null.
Procedure: letter, delivery and notification to the works committee
Disciplinary dismissal is communicated in writing, with the specific facts that motivate it and the effective date. The letter sets the scope of the dispute: different grounds from those written cannot be alleged later. A generic letter ("for loss of trust") without facts is worthless.
There is no notice period and no compensation needs to be made available, unlike objective dismissal. If there is legal representation of the workers, the letter is also delivered to the works committee or delegates. If the worker alleges a violation of fundamental rights, the burden of proof is reversed: it is the company that must prove the real grounds for the termination.
Time limits: the 60-day expiry
Article 60.2 of the Workers' Statute imposes a double limit. The employer has 60 calendar days to dismiss from the moment it becomes aware of the commission of the breach, and in any case six months from when it was committed. Once that period has passed, the breach is time-barred and the dismissal is unfair.
To challenge it, the worker has 20 working days from the delivery of the letter, with prior conciliation before the SMAC. Every day counts: the time limits are working days and August holidays do not stop them.
Classification: fair, unfair or null
If the cause is proven and the form is correct, the dismissal is fair and there is no compensation, only final settlement. If there is no cause, formal requirements are not met or the dismissal is outside the time limit, it is unfair: the employer chooses between reinstatement with processing salaries or compensation of 33 days per year worked with a cap of 24 monthly payments. Legal representatives of the workers have the right to choose reinstatement themselves.
Dismissal is null and void when it infringes fundamental rights, occurs during pregnancy, breastfeeding or certain types of leave, or is based on an unlawful cause. Nullity requires reinstatement and payment of full back pay.
Mistakes that turn a valid dismissal into an expensive one
The most common errors: a letter without specific facts or effective date, a cause that is not legally defined or is disproportionate, dismissal beyond the 60-day window, facts that cannot be proven, and stacking sanctions that are already time-barred. A single procedural error can cost 33 days' severance per year of service plus the costs of the proceedings.
Statutory severance is exempt from personal income tax up to EUR 180,000; any excess is taxed as employment income. With the cause documented, the letter properly drafted and delivery within the deadline, the risk of a disciplinary dismissal being declared unfair drops considerably.
