First of all, unjustified dismissal It is understood when the employer applies it without being appropriate, that is, it ends the services provided by the worker in the company, arguing, for example, the need for reduction of staff by the company or circumstances of direct responsibility of the employee which the worker does not consider it real.
Workers’ rights to unjustified dismissal in the United States
Before a unjustified dismissal, the worker loses the right to receive compensation and also does not have the right to be notified in advance, that is, in these cases, as the employer adduces causes that are attributed to the employee, there is no prior notice, therefore the employee is exposed to lose his job from one day to the next, losing the rights that protected him in the event of a dismissal.
However, when the employer indicates that this dismissal had to do with the need to reduce staff, although it is an argument that can be questioned, the worker is dismissed, but retains the right to receive compensation.
Causes attributable to the worker
1. The worker can be blamed for poor performance in their duties.
- Facts or actions that the worker has taken against the company.
- Lack of morale exercised by the worker that affects the good name of the company.
- Problems you have created with other workers in the company.
- Lack of respect for the contract signed by the worker at the time of being hired.
- Inappropriate conduct of the worker with respect to negotiating without the reliable consent of the company.
- Unexcused absence from the work that corresponds to the worker for several consecutive days or several days a month of absence.
- Absence from work without prior notice. when the work of the worker is of absolute importance, such as if his function had to do with the execution of a machinery that without his presence cannot function and therefore directly affects the company.
1 It is understood by abandonment of work, when the worker leaves his job abruptly, without prior notice and without the permission of his superior, supervisor or head of his sector.
- It is also considered as abandonment of work when the worker refuses to carry out the work that he agreed to when hired.
- He refuses to carry out his work without justifying his decision and against what is established in his contract.
- When he acts improperly and with risk, affecting the viability of the company with conduct that affects other workers, machinery or facilities.
- When the breach of its functions is considered serious.
When the worker leaves his job for any of these reasons, he can be fired without prior notice and without any compensation.
In any case, they are complex causes that must be proven judicially and therefore the worker has the right to claim for his dismissal, after which if the causes cannot be proven, he has the right to receive compensation.
What is understood by unjustified dismissal?
It is understood by unjustified dismissal when the company dismisses a worker without cause and without the employee having committed offenses that are sanctioned by the Federal Labor Law.
In any case, the employer may not dismiss the employee directly but conceals that dismissal with arguments disguised as changes in the schedule that have been outside of what is agreed in the employment contract or changes the address of the company, or may try to make the employee move to another branch or you can change your job.
Given that the preliminary conditions of the contract signed by the employee are modified, the worker may not be willing or obliged to accept these modifications, therefore instead of firing the employee, he may be dismissed and in these circumstances he resigns or is seen forced to resign.
However, in this situation it is important that the employee is advised by a lawyer because he is being induced to resign with the aim that the company does not pay him the compensation that would correspond if he is dismissed.
What to do in the face of wrongful termination?
Faced with an unjustified dismissal, the employee can take legal action claiming that his dismissal and unjustified, require the payment of owed benefits and compensation.
All of this declaring that there is no need for staff reduction and therefore no justification for dismissals.
In the United States, prosecuting an unjustified dismissal is complicated because companies do not make written contracts but from job applications, therefore the termination of the employment relationship can be carried out at the time the employer decides it, without this meaning that it was acted against the law.
However, the worker may suspect that the employer acted unlawfully in retaliation against him by violating state or federal laws, so he can sue him.
When the worker is injured at work, he must be informed because he is protected with the benefits granted by Worker’s Compensation, since he cannot be fired. Rather, the employer must assist you with a medical service.
Dismissal is illegal when the employee is discriminated against because of disability, religion, sex or nationality, or for opposing illegal tasks.
Nor can you be fired for requiring extra time in an emergency or when you are absent due to justified illness.
When the employer violates the worker’s rights, he is obligated to pay damages because the employee has lost his wages.
In the event that there is a written contract or if it does not exist, in the event of an illegal dismissal it is important that the employee act urgently seeking legal assistance.
In the event of an arbitrary dismissal, in the United States a claim can be filed with the Equal Employment Opportunity Commission and if this institution does not solve the problem, the fired employee can appeal to federal court.
If the employee entered the company through a job application, it is considered an employee at will, a very common employment regime in the United States and therefore the employee can be fired for whatever reason the employer considers or even without cause. But the employee can also resign at any time without valid reason.
But it is a labor regime with limits, because if the employee later signs a labor contract, it will replace the regime at will.
What are my rights in case of dismissal?
Depending on the laws of the state, you may be entitled to vacation pay and sick days that you have accrued, or you may only receive vacation pay.
You lose unemployment benefits if you are unable to work.
You are entitled to the funds in your retirement account that your employer sponsors, you can withdraw the contributions that correspond to you.
Difference between unfair and unfair dismissal
Dismissing someone just means firing them, right?
You may be familiar with the terms “unfair dismissal” and “unfair dismissal.” But do you know the difference?
Unfair dismissal is dismissal for breach of contract. A common example would be when the employer has terminated an employee, but has not provided the notice provided in the employee’s employment contract. Of course, there are some select circumstances in which an employer does not need to give notice, for example, if an employee has committed an act of serious misconduct.
If you act in violation of any contractual obligation, the employee can make claims for damages. Damages will reflect the pay and benefits the employee would have received if the layoff had been in accordance with the terms of the contract.
To make a claim, seniority in service is not required. This means that the employee does not need to have worked for you for a certain period of time before you can file a claim.
Depending on the value of the claim, claims can be filed in County Court, Superior Court, or Employment Court.
The right not to be unfairly fired is a statutory right established in the Labor Rights Law.
A dismissal will be considered unfair if:
The reason for the termination does not fall within the scope of one of the five potentially just reasons (eg, conduct or termination).
They did not act reasonably in the circumstances to treat it as sufficient reason to terminate the employee.
The employer did not follow a fair process.
If a Labor Court determines that the employee has been unfairly fired, it can order reinstatement, reinstatement, or compensation.
In most cases, an employee needs at least two years of service to be able to file a claim for wrongful termination in an employment court. There are some exceptions to this general rule. For example, if the primary or sole reason for firing an employee is that she is pregnant, the dismissal will automatically be considered unfair and the length of the employee’s service is irrelevant.
Claims can only be filed in an employment court.