Labor law regulates how a dismissal can be carried out.
Dismissal is the act and result of dismissing or dismissing . This verb, meanwhile, has several uses: it can refer to spreading, throwing something or doing without someone.
The idea of dismissal, therefore, is usually used to refer to an employer's decision to end the employment relationship that related to it with an employee . Firing a worker, in this sense, means firing him.
Anyone who is laid off loses their job because their employment contract is void . Depending on the situation, from then on you may collect compensation, unemployment benefits or not access any type of protection.
Types of dismissal
It is important to keep in mind that there are different types of dismissal. Before moving forward, it is worth clarifying that a resignation is not a dismissal : in this case, the worker himself chooses not to maintain the employment relationship.
Typically, labor law provides some type of coverage for the dismissed worker when the termination of the contract does not have just cause. Such assistance is given if the employer concludes an indefinite contract by his own decision (that is, not when a temporary contract comes to an end).
Among the types of dismissal we can mention:
- Proper dismissal : The employer makes the decision to terminate the employment relationship unilaterally, in accordance with the law . This implies that the law protects the actions of the businessman. We usually talk about objective dismissal when it is due to a need associated with the operation of the company.
- Unfair dismissal : The employer terminates the employment relationship for reasons that are not contemplated in labor laws or without respecting the procedures established by legislation (for example, doing so verbally and without a dismissal letter).
- Null dismissal : In this case, the termination of the employment contract violates labor rights or is carried out under circumstances not considered by law. The worker, in this way, can go to court to have a labor court order his reinstatement with the same conditions that existed before the dismissal.
- Collective dismissal : The company decides to terminate the contracts of many workers simultaneously. In some nations, the personnel cuts caused by these massive layoffs are carried out through an Employment Regulation File (ERE) .
Those who are laid off usually have access to unemployment insurance.
Unregistered work
Unregistered work represents a violation of worker rights . Those who work black do not have labor benefits of any kind: they do not receive contributions for their retirement, they cannot demand the minimum wage established by law, they do not have paid vacations , they do not receive overtime, etc.
In this framework, dismissal can be decided unilaterally by the employer without any type of consideration: since the employee is not registered, he does not have legal protection. Even if it is a dismissal without cause or even the result of employment discrimination, the employer is not obliged by law to pay compensation since the employment relationship in question does not even have legal recognition.
To avoid this situation, it is possible to request - even anonymously - a labor inspection . Thus, the competent authorities approach the workplace to determine if there are employees who are not properly registered. If black labor is confirmed, the employer is sanctioned.
An employer may decide to dismiss after a performance evaluation.
Examples of dismissal
Let's take the case of a woman who works in the Marketing area of a software company. Due to a business restructuring, the worker is informed, with the advance notice established in labor laws, that at the end of the month the employment relationship will be terminated. That is why you are asked to approach the Human Resources ( HR ) office to agree on the details. When the time comes, and after receiving the formal notification, the worker agrees to the corresponding settlement (settlement) and the relationship is concluded.
Now suppose that a man works as a waiter in a restaurant. One night, the owner of the establishment informs him of his dismissal and tells him not to return the next day. Faced with this situation, the worker approaches his union to ask for advice. There they tell him that he must send his employer a telegram demanding that he clarify his employment situation. Meanwhile, they explain to him in the union, he must continue going to work. Since the owner of the restaurant not only does not respond to the telegram but also prevents him from entering to fulfill his work obligations, the worker turns to a labor lawyer to take legal action.
If we compare both situations, we will notice that the first case (the woman fired from the software company) constitutes a fair dismissal . On the contrary, the waiter is the victim of unfair dismissal . If you move forward with your legal claim, it will likely be deemed a void dismissal and the restaurant will be forced to reinstate the employee.