Before going into the substance of the matter, we must know what the types of dismissal are. In a dismissal procedure, the judge may classify the dismissal as fair , unfair or void .
Coming from
The cause or breach of contract alleged by the employer has been proven. This means that the termination is valid; the employee is not entitled to compensation or to the procedural wages.
Unfair
Dismissal is considered unjustified when the breach or the women database cause alleged by the employer has not been proven, or the employee's breach has not been serious or culpable.
The dismissal will also be declared unfair when the termination decision has not met the formal requirements of article 55.1 of the Workers' Statute.
Consequences: Within a period of 5 days, the employer must decide either to reinstate the worker to his or her job or to pay compensation of 33 days per year for services rendered after 12 February 2012.
If the worker is a legal or union representative, the right to choose is his or hers.
Null
Termination decisions are declared void when they are discriminatory or infringe fundamental rights or public freedoms of the worker. The employer must immediately reinstate the worker, in addition to paying the procedural wages.
Go up
The answer would be affirmative, yes, they can fire us. This is clear from the law and the jurisprudence of the Courts. But recently, the first sentence was issued by the Social Court No. 33 of Barcelona, which declared the dismissal of a worker who was on sick leave null and void .
The judgment is relevant since it bases its decision on a ruling of the Court of Justice of the European Union.
Until now, the Supreme Court's doctrine indicated that in these situations where the worker is on sick leave, the employer can allege "lack of profitability in maintaining the job" , that is, they could fire the worker for being on sick leave, calling it unfair, but in no case void.
The Barcelona Court considers that this is a situation of direct discrimination based on disability. This is a ruling that sets a precedent for the preliminary questions raised before the CJEU.