In the present article aims to address the issue of how it affects the employment relationship, the situation of detention of the employee. For example, in a situation similar to the following:
A worker is arrested for domestic violence, going to the situation of pretrial detention, where it remains for seven days. Communicates the situation to the company. When it is on parole, is reinstated to his job, holding the trial after six months, in which he is sentenced to eight months in jail, not entering the prison by being sentenced to less than two years. The company to be firm that judgment, it is appropriate to dismiss for disciplinary reasons to the worker, in accordance with art. 54.2.a) E. T., for having failed unreasonably to the work of the seven days he was in custody.
First result: Suspension of the contract.
The art. 45.1.g) the E. T., is as the cause of suspension of the labour relationship, the deprivation of liberty of the worker is motivated by the impossibility justified assistance to the work, and as a guarantee of the right to the presumption of innocence. In such a case, it will give the worker lower in the Social Security without having to pay or repay him.
deprivation of liberty is not a reason to punish the employee but if that should terminate the contract.
If there is a conviction firm that determines your entrance into the prison, you will be able to dismiss it.
If one of their workers has been arrested and this has prevented you from going to your job, your company will have to suspend the work contract immediately. For these purposes, the act provides as cause for suspension of the deprivation of liberty of the workers. Therefore, you must process your low on Social Security (so that it will stop trading and pay the salary), and the time during which the contract remains in suspension is not counted for the purposes compensation, or seniority, or vacation.
For the company to proceed to the suspension of the employment relationship, and not when disciplinary dismissal for unexcused absences, it is required that the worker inform the employer in the shortest timeframe possible, your situation of deprivation of freedom, which allows the employer to adopt the most suitable actions for the progress of the company, as the position temporarily vacant.
The worker stopped, you must communicate to the employer your situation, but our law requires a specific medium, just the reality of the business of the start-actual knowledge by any means normal and reasonable that is at the scope of possibilities of the worker (phone call, communication of the attorney, etc…).
In this sense, the deprivation of liberty justified the absence to the work. This implies the following:
- If you penalize your employee for absences, the sanction will be null and void. Only have the option to punish if you don’t communicate the reason for their absences.
- If you decide to fire him directly, alleging that he has been arrested and that this implies a loss of trust in his person, the dismissal was declared unfair. That is to say, the simple arrest, without a conviction, is not a cause for dismissal. To this general rule there is an exception, according to which you may be able to fire your employee (even if no conviction) if you have been arrested for committing a crime that affects their own business-and you can prove the crime (that he has stolen money from the box or that has assaulted one of their customers, for example). But in this case the cause of the dismissal will be the transgression of the good faith on the part of his employee, not his arrest.
Freedom (conditional-provisional or unconditional-final) and re-entry to the workplace.
is What determines the suspension of the contract, it is not the pendency of the criminal case that is ongoing, but the actual deprivation of liberty when the deprivation ceases the granting of the freedom definitive or provisional, cease the suspension of the work contract, having the right to be reinstated to his position.
Once your employee is on probation, the cause of the suspension of his contract will disappear. In consequence, if there is a conviction firm:
- the employee must return to work immediately. In the event that you do not, we have to send a registered fax and remind him of his obligation to report to work. If still no go, you will be able to dismiss alleging unexcused absences after their release.
- If the company refused to reinstate the affected, it could bring his lawsuit for unfair dismissal.
“the cause of The dismissal will not be the condemnation, but the unexcused absence to the job”..
Result end. Disciplinary dismissal.
As a result of a final conviction, the lack of assistance to the work during the period in which the worker remained in prison, lost his justification, and let you have the coverage of the situation suspensive, taking shape as a very serious offense of unexcused absences to the workplace.
“The arrest, detention or deprivation of liberty of the worker is a cause for suspension of the employment relationship, which may be a cause of disciplinary dismissal for absences to work, if sentenced by final judgment”.
If the crime of his employee is confirmed by a judgment of conviction, a firm way that they should remain in prison. In that case, your absences will not be excused. This is because it is considered that his deprivation of liberty is a direct consequence of having committed an offence “voluntarily”. In this sense, your company can fire you for disciplinary cases. Have to be taken into account that what will make the dismissal is not a conviction in itself, but unexcused absences. Therefore, it is essential to allege such motive at the time of composing the letter of dismissal.