You are fired
When the owner of a trendy bar in the Born district sold his business and fired the entire staff with two weeks’ notice, he believed that they would simply wander off and find work elsewhere. “There were about 10 of us, and nobody had a contract,” said Emil, who asked to keep himself, and the bar anonymous because, he said, the owner is now involved in politics.
As an unwilling veteran of the war in former Yugoslavia, Emil is naturally cautious about making enemies with anyone in authority. “His brother is an important man in the Partido Popular, and their grandfather was a president of the Generalitat or something like that. That’s why this guy was able to pay all these people in black, because he has a very ‘fat’ background.”
The owner, like many proprietors in Barcelona, was counting on the general apathy of workers who are averse toward pursuing legal means in claiming their rights. “There were Argentines, Spanish, Croatian, Colombian, Irish, all different countries and most of us didn’t know anything about the law here. But these Catalan guys knew something and said that it couldn’t be like that—he had to pay us a finiquito [severance pay] and some months. We told the owner that if he didn’t do that, we would take some measures. He didn’t listen, so we found a lawyer, Francisca Ramos González.”
Ramos took their case without charging any money up front. Within weeks, the litigants attended Servicio de Mediación, Arbitraje y Conciliación (arbitration), and a settlement of €27,000 was made immediately. Ramos convinced the proprietor and his lawyer that if the case went to Social Court, he could end up paying three or four times that amount in fines and Social Security benefits.
Ramos defends her clients with a passion, said Emil. “She’s really fantastic. When you have her on your side, you really feel like you have a champion.” But not all labour lawyers are alike, and it can be very difficult to find someone of her calibre. Many will not take a case without a deposit up front, though most of them will take a percentage of the settlement.
Alternatively, a fired worker can find help through organisations like Commissiones Obreros (CCOO) and the Union General de Trabajadores (UGT). These are the two largest Spanish trade unions and they have fought for decades to ease the transition from employed to unemployed to re-employed. They offer advice for a nominal fee to non-union members, while members receive this support free of charge. Eugeni Fernandez, a lawyer with CCOO, advised, “Don’t sign anything until you’ve spoken to a union or a lawyer. If your employer pressures you, then write ‘Recibí y no conforme [Received and not agreed].’” The Gabinete Juridico at CCOO is available for any worker in need.
The problem, as the unions see it, is that the average worker is unaware of his or her rights. Many times, they trust their soon-to-be ex-employers and sign whatever document is laid out in front of them, often waiving their rights to a proper severance. Many wait too long before applying for unemployment and find themselves unable to claim the paro (unemployment benefit).
The rights of both worker and employer are all outlined and regulated on two levels. There is the Estatuto de los Trabajadores, which is a national law; no other agreement may violate the terms of this statute. Below that are the Convenios Colectivos del Sector. The convenios are legally binding agreements whose conditions and duration are negotiated through union representatives and industry associations. Convenios regulate timetables, salaries, breaks, work permits and other details. Within specific companies, workers and management may also negotiate an internal acuerdo laboral, which legally can only improve upon and not reduce the workers’ benefits according to the convenio of their sector.
What matters most to both employer and employee is whether the dismissal (despido in Castilian and acomiadament in Catalan) is procedente or improcedente, justifiable or unjustifiable. In the first case, the worker is entitled to either a limited indemnización (settlement) or no indemnización at all, depending on the circumstances. In the case of a despido improcedente, the worker is entitled to a larger severance—usually 45 days paid for every year with the company. In both cases, a fired worker is entitled to collect unemployment benefit as long as they haven’t quit of their own accord.
Examples of a despido procedente would be: for the economic survival of the organisation through downsizing; bankruptcy; an Act of Providence, such as a flood or an earthquake, which would make the premises unusable; the death of the owner and only person in charge; expiry of a short-term contract, for example for a specific project or seasonal work; or an abusive, inept or insubordinate worker.
Just as the worker may be unaware of their legal rights at the moment of dismissal, an employer may be equally ignorant of the law and fire their workers in a manner that is considered improcedente. Whether it’s pursued or not, the worker has a right to appeal the dismissal, and the case may be referred for conciliación (negotiation), which–if settled—will be done rather quickly, as in Emil’s case against his former employer. Or it can move directly to court, which can take months or years to decide.
One such case, brought by the Federació d’Ensenyament de CCOO against the language school Opening, took nearly five years to resolve, but the 400 former employees eventually received an average payout of just under €7,000 each.
Francisca Ramos believes that the problems facing fired workers are not a matter of law, but of expedience. “If, for example, a person is fired or not paid, labour proceedings begin with a negotiation. In many cases the proprietor won’t agree to any terms and the case is sent to Social Court, which is faster than Civil Court, but it still takes no less than two months.
“Also, sometimes the dismissal is verbal and without written notice. In such cases, unemployment benefits cannot be processed without a judicial order. If the worker could begin the process at the self-same moment of dismissal, this would mitigate the situation a little.”
Fighting a former employer is an emotional burden for everybody involved. In Emil’s case, the owner of the bar broke down and cried. “The guy was totally ruined and begging us, saying, ‘Please don’t ruin me,’ and blah-blah-blah. It was a mixed emotion for me. I wasn’t really happy. He had always tried to be friendly, in his way. But one thing is being friendly and another is being screwed. We fought for something that belonged to us and we got it right. I was awarded €3,000 in the settlement, which really helped me get on with my life. Without it, I don’t know what I would have done.”
More info:
CCOO—Tel. 93 481 2700 (main) or 93 481 2864 (Gabinete Juridico), www.ccoo.es
UGT—Tel. 93 304 6800, www.ugt.es