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Can you terminate an employee for excused absences?

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July 30, 2015

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When we normally think about the termination of an employment agreement for an objective cause, we generally think about those that are of economic, productive, organizational or technical nature. Despite this fact, it is worth to outline that the Statute of Workers establishes other causes that may give the employer the chance to terminate an employee. If we are facing an objective cause, the severance payment will consist of 20 days per year worked, with the limit of a year’s salary. This is beneficial for the company, because if there is no valid reason to terminate the contract (unfair termination) the severance payment would have amounted to 45 days calculated until February 12th 2012 and 33 days thereafter (after the new reform), with a limit of 42 months of salary.

 The aim of this article is to analyze one if these other causes that allows the entrepreneur to finish a contract that consists in absences from work.

In order to consider the termination owing to absences from work objective, the following circumstances are required:

  • That the absences amount to 20 per cent of the working days in two continuous months.
  • That the total employee absences in the previous twelve month reaches the 5 per cent of working days, or 25 per cent for four discontinuous month within a twelve-month period.

Absences due to strike throughout the legal duration of it, the exercise of workers’ legal representation activities, work accidents, maternity leave, pregnancy risk, illnesses caused by pregnancy, childbirth or breast-feeding, leaves and holidays, and non-occupational illnesses or accidents when the admission to treatment has been granted by the official health services and has a duration of more than twenty consecutive days,  shall not be computed as absences for the purpose of objective causes.  Absences motivated by the physical or psychological situation arising from gender violence, or those caused by cancer or serious illness treatment  are also excluded.

Therefore, there are two type of requirements in order to terminate a contract using this possibility. First, a quantitative requirement regarding the number of absences in terms of percentage. Secondly, a qualitative requisite, as not every absence entitles the company to extinguish the employment agreement.

Individual absenteeism as a reason for dismissing a worker

Before the Labour Reform of February 2012 had taken place, in order to be able to terminate an employment agreement owing to reiterative absences, it was also necessary that the total index of absenteeism in the work force of the work center exceeded 5 per cent during the same time period.  With the new reform, however, this requisite is no longer applicable, thus taking away the protection of those employees who are frequently absent from their jobs.

For the abovementioned reasons, it is highly recommended to keep track of your staff absence, and if need, be able to terminate the contract of an employee who frequently does not come to work, as it is always detrimental for the business operation.

If you are in a similar situation and you have any queries about how to deal with this issue, do not hesitate in contact us. Our labour specialists will provide you with the best advice possible to solve it.


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