What to do if I have been fired as a foreigner

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What to do if I have been fired as a foreigner

What to do if I have been fired as a foreigner Are you a foreigner and have just been fired from your job? Can the dismissal affect your residence permit? Can I claim unemployment benefits as a foreigner? In this article, we will answer these questions and tell you everything you can do regarding dismissal from employment.

What types of dismissal are there in Spain?

In Spain, there are four types of dismissal:

  1. Unfair dismissal: This type of dismissal occurs when the company does not have a justified reason or cause to terminate the employee. In this case, the compensation is 33 days’ salary per year worked, with a maximum of 24 monthly payments.
  2. Objective dismissal: This type of dismissal occurs when the company does have a reason or cause to terminate the employee and has evidence to support it. The compensation is 20 days’ salary per year worked, with a maximum of 12 monthly payments.
  3. Collective dismissal: This type of dismissal occurs when the company terminates a large number of employees. The compensation is 20 days’ salary per year worked, with a maximum of 12 monthly payments.
  4. Disciplinary dismissal: This type of dismissal occurs when the employee commits one or several serious offenses. This dismissal does not grant compensation.

The company has a period of 20 business days to make the payment of compensation from the date of dismissal. If the payment is not made within that time, the employee has 20 business days to sue the company for non-payment of compensation.

What should a worker who has just been dismissed do?

Here are the steps a worker should take after being dismissed:

Dismissal Letter

The employer must communicate the dismissal to the worker in writing through a dismissal letter. This letter should include:

  • Reason for dismissal.
  • The grounds for termination.
  • Effective date.
  • Settlement, salary, and any outstanding amounts such as vacation pay or overtime. Additionally, the employer must provide the worker with an employment certificate and contribution documents so they can apply for unemployment benefits if applicable.

Legal Advice

Seek the assistance of a specialized lawyer, especially if you believe your dismissal is unjust or illegal.

If you want us to assist you with your dismissal, do not hesitate to contact us, and we will help you with everything you need.

Negotiate the Severance Package

If you are entitled to severance pay, you can negotiate the amount if you believe it is unfair. In most cases, the company is willing to negotiate to avoid being sued.

Attend a Conciliation Hearing (SMAC)

This is the pre-trial phase, where an attempt is made to reach an agreement between the company and the employee. The conciliation hearing involves the employee submitting a written statement detailing the company they worked for, the position they held, and the reason for the dismissal. With this claim, the employee requests that their dismissal be declared null or unjustified.

Filing a Lawsuit in the Labor Court

If an agreement is not reached during the conciliation hearing, the worker can file a lawsuit in the Labor Court. The lawsuit must be submitted in writing and include the following:

  • Data of the plaintiff.
  • Enumerate the facts for which the lawsuit is filed.
  • Workplace, salary, payment method, schedule, seniority in the company, professional category, and specific characteristics of the work performed before the dismissal.
  • Effective date of termination and the manner in which it took place.
  • If the terminated employee was a legal or union representative of the workers in the year of dismissal.
  • If the employee belongs to a union when alleging the unjustified nature of the dismissal because it was carried out without the presence of union delegates, if any.
  • If the plaintiff represents themselves, they must designate a domicile in the locality where the Court resides, where all proceedings related to them will take place.
  • Date and signature.

Complying with the Judge’s Ruling

The labor court judge will issue a ruling stating whether the worker must be reinstated in the company with the same position they held before, if the worker is reinstated, the company will have to pay the salary they missed and their Social Security contributions from the date of dismissal. If the ruling is not favorable for the employee, they will have to register as unemployed.

Registering with the SEPE

To be eligible for unemployment benefits, you must register with the SEPE. Once you register with the SEPE, you will receive a job seeker’s card that you will need to renew every three months. You will also be able to enroll in courses and job offers.

Can dismissal affect the residence permit?

The dismissal of a foreign worker can lead to the loss of their residence and work permit if it was obtained based on that employment contract. It’s important to seek the assistance of an expert lawyer who can advise you on the options available to avoid becoming irregular in Spain.

Can I claim unemployment benefits as a foreigner?

If you are a foreign worker residing legally in Spain, you have the same right to claim unemployment benefits as a Spanish citizen.

Documents required to apply for unemployment benefits:

  • Completed application form.
  • ID card (DNI) or foreigner identification number (NIE).
  • ID cards of any dependent children.
  • Family book (if applicable).
  • Certificate from the previous employer.
  • Stamped unemployment card proving registration as a job seeker.
  • Bank account number for payment deposits.

Requirements to be eligible for unemployment benefits:

  • Have worked for at least 360 days within the six years prior to becoming unemployed.
  • Be unemployed due to dismissal, contract termination, or reduction of working hours.
  • Be registered as a job seeker with the SEPE (State Public Employment Service).
  • Submit the application within 15 working days from the end of the employment contract.
  • Fulfill all requirements while receiving the benefits, such as renewing the job seeker registration.
  • Be affiliated with Social Security.
  • Not have reached the statutory retirement age (usually between 65-67 years old).

Frequently asked questions and answers

Do I have to sue for dismissal to claim unemployment benefits?

No, it’s not necessary to file a lawsuit in court. A report from the company regarding the dismissal is sufficient to claim unemployment benefits.

Can I claim unemployment benefits if I am a fixed-term intermittent worker?

Yes, if you are a fixed-term intermittent worker, you can claim unemployment benefits during the periods of the year when you are not working. However, you cannot claim benefits when you are working or if you are working part-time.

Can I claim unemployment benefits if I voluntarily leave my job?

No, you are not entitled to claim unemployment benefits if you voluntarily leave your job.

If I receive unemployment benefits, can other members of my family also receive them?

Yes, other family members can receive unemployment benefits as long as they meet the necessary requirements.

Can I claim unemployment benefits if I lose a part-time job but still have a full-time job?

No, you cannot claim unemployment benefits if you have a full-time job.

I live with my partner in a de facto relationship, do they count as a dependent for claiming unemployment benefits?

No, your de facto partner is not considered part of the family unit for the purpose of claiming unemployment benefits.

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