The tacit dismissal is the termination of an employee's employment contract by his or her employer without such a decision having been manifested by an express communication from the employer, i.e. there is no written or verbal statement, but it is deduced from conclusive facts that reveal the employer's unequivocal intention to terminate the employment relationship.
Although tacit dismissal is not included in the Workers' Statute, doctrine admits that dismissal can be express or tacit and, in turn, case law has created this figure when there is, effectively and by the employer's will, the non-applicability of the essential benefits of the employment contract, i.e. work and pay. Therefore, the lack of effective occupation and the non-payment of salary without a justifying cause will result in tacit dismissal, the elements that configure it being its non-formality, its mode of materialisation and the lack of cause. Although there may be exceptions, so we will have to look at the specific case.
What to do in case of tacit dismissal and how long do I have to contest it?
It should be borne in mind that, following a dismissal, the employee has a period of 20 working days in which to contest it; However, when we are faced with a tacit dismissal, uncertainty arises as to the dies a quo (i.e. the initial moment) of the computation of the period, since this dismissal has not been expressly carried out on a specific day by the employer. In this respect, the Supreme Court has made it clear that the expiry of the limitation period is always operative when there is sufficiently conclusive evidence on the basis of which the employer's intention to terminate the employment relationship can be established, such that the calculation of the 20 working days must start from the moment at which, on the basis of these indications, the worker is unequivocally aware that the dismissal has taken place, therefore, the dies a quo will be at that precise moment.
Is it inappropriate?
In general terms, the qualification of a tacit dismissal, provided that it is contested in due time and form, will be considered as unfair, The applicant claims that the legal formalities laid down by law have not been complied with and, consequently, that the Commission has failed to act in accordance with the law, shall entail compensation corresponding to 33 days per year worked, up to a limit of 24 monthly payments.
That is why the advice of a lawyer specialised in labour law is so important in these cases. At Martínez Sanz Abogados we offer legal guidance to both workers and employers on employment issues, contracts, rights, responsibilities, etc., as well as providing legal defence in proceedings related to dismissals, harassment, employment discrimination, claims for amounts owed, processing of EREs and ERTEs, Social Security, among others.
