The possibility to carry out a new dismissal for the same reasons when a dismissal has been judicially declared as unfair due to formal defects

Written on 19 December 2017


Is it possible to carry out a new dismissal within a period of 7 days from the notification of the judgment declaring a dismissal as unfair (both for disciplinary or objective reasons) due to formal defects? And after that 7 day period?

By regulating the effects of disciplinary dismissals declared as unfair, article 110.4 of the Labour Procedure Act, permits that when a dismissal is declared as unfair due to non-compliance with the established formal requirements and the company has opted for the readmission of the employee, a new dismissal may be carried out within seven days from the notification of the judgment. According to said article, the aforementioned dismissal will not constitute a rectification of the original dismissal, and will be a new dismissal which will come into effect from its effective date.

The Supreme Court, in its ruling of 10 October 2017, has clarified as to whether the provisions of this article are applicable not only to disciplinary dismissals but also to dismissals for objective reasons. It also clarifies whether it is possible to carry out a dismissal for the same or similar acts after that 7 day period.

Firstly, in the aforementioned judgment, the Supreme Court rules out that article 110.4 is not applicable to dismissals for objective reasons. The Court considers that the scope of the aforementioned article is intended to facilitate and not to hinder the exercise of disciplinary power when formal deficiencies have previously occurred during its exercise. In the judgment, the Supreme Court clarifies that it is not possible to ignore the fact that the time elapsed between the first dismissal and the second will exceed, in almost all cases, the limitation period for imposing a disciplinary dismissal. Therefore, the purpose of article 110.4 is to complement article 60.2 of the Workers Statue regarding limitation periods, by allowing a new dismissal to be carried out within those 7 days for the same misconduct without it being understood that these have prescribed. In addition, according to the Supreme Court, the Labour Procedure Act, in the regulations for procedures for challenging dismissals for objective reasons, does not make any reference to the rectification of formal defects.

Secondly, regarding the possibility of carrying out a new dismissal for objective reasons for the same or similar acts, the Supreme Court considers that a new dismissal for the same acts can be carried out, either during the 7 days from the judgment declaring it as unfair due to formal defects or even after that period.

The Court determines that since the inadmissibility of the dismissal is due to a formal defect, the objective cause that led to the dismissal has, therefore, not been judged. Therefore, the Court ruled that the dismissed employees cannot request the res iudicata exception, since the merits of the case were not brought to light – and they can be dismissed for the same objective reasons provided that the grounds that motivated the initial dismissal still persist.

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*This article is current as of the date of its publication and does not necessarily reflect the present state of the law or relevant regulation.

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