Disciplinary Procedures and Unfair Dismissal for Employee Representatives

Disciplinary File for Severe and Very Severe Penalties (Articles 68 and 55.1 ET)

Preliminary Procedure for Sanctions

Before imposing severe or very severe sanctions on a workers' representative or a candidate during the electoral process, the company must process an adversarial or disciplinary file. This also applies to disciplinary action against a former representative up to one year after the termination of their mandate.

The processing of this file interrupts the limitation period for professional misconduct (Article 60 ET).

Contents of the Disciplinary File

The disciplinary file must include:

• Informing the employee of the alleged facts and infractions against them.
• Granting a hearing to the person concerned and other workers' representatives, allowing them to challenge or refute the alleged facts.
• A deadline for issuing the final report.
• Consideration of any evidence proposed by the person concerned.
• Adherence to any specific procedures established in the collective bargaining agreement.

Conclusion of the Disciplinary File

The disciplinary file concludes with either:

• Acquittal of the employee.
• The imposition of a penalty.

This penalty may be challenged in the labor courts. During the legal procedure, the disciplinary record serves as documentary evidence, its value to be determined by the court.

Consequences of Non-Compliance

Failure to initiate or a defective initiation of the disciplinary file leads to the declaration of unfair dismissal (Article 108.1 LPL) and the invalidity of any severe or very severe punishment imposed (Article 115.2 LPL).

Unfair Dismissal and Reinstatement Rights of Workers' Representatives

Right of Option in Unfair Dismissal

Article 56.4 of the Workers' Statute (ET) grants workers' representatives, whose dismissal is declared unfair, the right to choose between reinstatement to their position or receiving compensation for dismissal.

Definition of a Representative

For these purposes, a "representative" includes both the individual currently holding a representative office and a candidate elected after the dismissal.

Implied Reinstatement

If the representative does not explicitly choose, reinstatement is implied.

Irregular Reinstatement and Enforcement

The option (whether express or implied) for reinstatement will proceed according to its terms (Article 56.4 ET and Article 280.1.a LPL). If the employer fails to fulfill their duty to reinstate the worker or does so irregularly (as detailed below), the worker may request the Labor Court Judge to enforce the final decision through a judicial order, which will include the following:

• An order to reinstate the worker to their job.
• In any event, if reinstatement is not possible or if there is no specific labor provision for it, the order will include:
  • Obligation to pay the worker's wages, with corresponding increases as per the collective bargaining agreement.
  • Obligation to maintain the worker's registration and contributions to Social Security.
  • Obligation to allow the representative to continue performing the activities and functions of their office within the company.

Non-Discrimination of Representatives

The employer cannot prejudice the representative economically or professionally because of their representative office.