Background

The Statute of Workers establishes that if an employer does not deposit the severance package for unfair dismissal with 48 hours of the employment terminating, and such dismissal is then declared unfair by the labour courts, the employee will be entitled to the salaries accrued until the “ruling that declares the unfairness of the dismissal” is notified to him/her (unless the company opts to reinstate the employee in his/her former position).

Facts

In this Supreme Court case, the employee filed a claim for unfair dismissal against two companies. One of them was ruled against in the first instance. However, the labour court’s decision was appealed and the regional Superior Court found in favour of that Company and instead ruled against the other company for unfair dismissal. The Company was ordered to pay the employee salary accrued from the date of the dismissal until the second ruling was notified to him. The Supreme Court ratified this decision but established that the legal provision whereby the Administration must pay for those salaries that exceed 60 days (as compensation for the damages such a delay has caused to the employer finally ruled against) applied.

Effect on employers 

The 60 days run from the date the claim is filed by the dismissed employee and do not take into account any delays caused by the parties. Consequently, if an employer is ruled against for the first time in the second instance, it will almost surely end up paying more than 60 days of salary.

Judgement of the Supreme Court of 26 February 2008