Free dismissal is the termination of the employment relationship by unilateral decision of the employer in an arbitrary manner and without having to comply with reasons established in the labor law, having to compensate the worker.
This dismissal, contrary to what happens with disciplinary or objective dismissal, is not based on the will of non-compliance by the worker or on objective causes that motivate this dismissal such as the malfunction of the company, but rather what motivates this dismissal is the arbitrary decision of the employer.
This free dismissal can be free. That is, in addition to the fact that the employment relationship can be terminated without any assessed reason, there is no compensation for the worker. This happens when the worker does not pass the trial period, for example.
Consequences of free dismissal
The main consequences of this type of dismissal would be:
- Employers should not comply with any cause assessed by law to terminate the employment contract. Nor would they have to argue anything about whether the reason for the dismissal is a cause that affects the worker or for economic or productive reasons of the company. All this entails arbitrariness for the dismissal of the employer who would be the only one who would make the decision. This benefits the employer.
- The worker could not appeal for this decision before the courts as he can do in the other dismissals, since he would have nothing to refute as it is a decision made by the employer freely and the reason why it has been taken cannot be discussed. This implication could be nuanced. The worker could only appeal for infringement of the formal requirements such as advance notice or the way to notify this dismissal.
- Employers would avoid the possibility that the dismissal would be classified as inadmissible and workers would not be compensated. Nor could it be qualified as null.
- If it is only free dismissal and not free free dismissal, you must compensate the worker as if it were an objective dismissal.
Differences between layoffs
The types of layoffs are:
- Objective dismissal: This dismissal is caused by reasons assessed in the labor law that are related to the operation of the company. They are usually economic, technical, organizational or productive causes. The worker has the right to compensation.
- Dismissal from: This dismissal is one that complies with the requirements of the Labor Law. The employer terminates this employment relationship complying with the formal and substantive requirements, that is, there are causes to terminate the contract with the worker, whether attributable to the worker himself or for economic reasons of the company. The worker has the right to compensation.
- Unfair dismissal: This type of termination of the employment relationship supposes that the employer has not complied with the substantive or formal requirements in the dismissal. Therefore, you have to pay more compensation to the worker.
- Disciplinary dismissal: This dismissal is based on objective causes attributable to the worker, such as drunkenness at work, failure to adapt to the job, lateness, etc. In this case, the worker will not be entitled to compensation.
- Void dismissal: This termination of the employment contract violates the fundamental rights and freedoms of the worker. If the employer commits this dismissal, he is obliged to reinstate the worker in the position he usually occupied or in normal functions. An example of this type of dismissal is terminating a woman’s employment contract because she is pregnant.
- Free dismissal: This termination of the employment contract is based on the decision of the employer without the need for reasons attributable to the worker or to the economic or productive situation of the company. If it is not free dismissal, the worker will be entitled to compensation.