Some courts are admitting notifications of worker termination in which the worker is informed of his/her voluntary termination due to absenteeism and, at the same time and by default, of disciplinary dismissal in the event the first option is not possible.

At times, companies face unjustified absenteeism of employees from work that may be grounds for disciplinary dismissal that would entitle the worker to unemployment benefits. Pursuant to article 267.1.a), section 3, of the General Social Security Law (LGSS), the worker would be in a legal situation of unemployment if his/her labor relationship is terminated by dismissal, but not voluntary retirement. In addition, article 268.4 LGSS states that, in the event of dismissal, the employer’s decision to terminate the relationship shall be understood itself as legal grounds of unemployment, without the need to contest it.

In cases of absenteeism, it is common for companies to proceed with disciplinary dismissal due to unjustified absenteeism, given that they consider that it is the form that adjusts best to reality and provides the greatest legal security against a claim filed by the worker. For two reasons: firstly, because there exists authentic absences that are unjustified and that would support the disciplinary measures imposed and, secondly, because processing termination could lead to the risk of the termination being considered as unjustified dismissal if it cannot be proven that the worker actually wishes to terminate the relationship, either expressly or tacitly.

In relation to this type of dismissal due to unjustified absenteeism, the Public Service of National Employment (SEPE) could deny unemployment benefits if it considers that such absenteeism implies the voluntary conduct of the worker to leave his/her job as, pursuant to article 267.2 A) LGS, workers are not considered in a legal situation of unemployment if they voluntarily terminate the relationship. This has been confirmed, amongst other cases, by the judgment of the High Court of Justice of Catalonia, of March 23, 2020  (Rec. 4985/2020), in denying unemployment benefits to a worker who forced his dismissal by absenteeism, in spite of the company’s requests which, unlike what occurs with voluntary retirement, enables him access to unemployment benefits. The same decision was given in judgment by the Labor Court number 2 of Valencia, which appeared in the media. This modus operandi could warrant an inspection of companies due to an alleged contriving with a worker to unduly obtain unemployment benefits, in a scenario constituted by: (i) unjustified absenteeism,, (ii) disciplinary dismissal by the employer, (iii) which is not contested by the worker and (iv) a subsequent resolution by the SEPE refusing the benefits. In accordance with article 23.1 c) of the Law on Labor Infringements and Penalties, “any contrivance between the company and a worker or with other beneficiaries to obtain and you benefits” constitutes a very serious infringement on the part of the employer”.

Under the circumstances, it is important to bear in mind that certain courts have admitted notification of termination to a worker in which, as a result of his/her absenteeism, he/she is informed of his/her voluntary retirement at the company and, at the same time and by default, notified of his/her disciplinary dismissal, in the event the first option is not effective. In this way, in the event of a possible claim filed by the employee, it will be understood that that the absenteeism does not evidence an unmistakable will on the part of the worker to voluntarily leave the company, the disciplinary dismissal would not be analyzed. In this regard, for example, the judgment by the Labor Chamber of the High Court of Justice of Madrid of February 22, 2010  (Rec. 471/2010), and the Madrid High Court of Justice of March 21, 2000 6 (Rec. 5355/2005). There have been similar judgments in rulings by the Labor Court number 7 of Malaga, of July 27, 2022 the Labor Court of Castellón, on May 16, 2022, which chose the first option of voluntary termination notified by the company.

In this way, with a dual notification, for the purposes of dismissal, there would be compliance in any case with the requirements of article 55.1 of the Workers Statute, in relation to the form of disciplinary dismissal (“the dismissal shall be notified by writing to the worker, specifying the facts causing it and the dates it becomes effective”). In addition, with the processing of the termination as a voluntary termination with the Social Security by the company, it would evidence of the non-existence of any contrivance with the employer, in the case of future inspections, for having informed that the workers conduct could initially constitute voluntary retirement and, by default, grounds for disciplinary dismissal.

Julián García

Garrigues Labor and Employment Law Department