The Dismissal of an employee already dismissed or the precautionary dismissal
The precautionary dismissal in Spain, also known as dismissal ad cautelam, occurs when, after dismissing an employee, an employer obtains information of new acts not sanctioned in the first dismissal, that if had been known of beforehand, could have also justified termination of the employment contract on disciplinary grounds.
The employer’s options in relation to a precautionary dismissal
In this situation, the first option for an employer consists of extending the letter of dismissal to include the new known acts. However, what happens if these new acts are discovered after the act of conciliation to dismissal has taken place without compromise?
To provide an answer to this question, the doctrine in Spain has created the concept known as the dismissal ad cautelam, precautionary dismissal or dismissal of an employee already dismissed. This concept grants an employer the possibility to proceed to a new dismissal based on different acts from those that justified the first one, while the previous dismissal is being resolved judicially and has not yet come into force.
The peculiarity of the precautionary dismissal consists of the fact that it is not in the use – it seems difficult, even impossible-, to dismiss an employee who has already been dismissed from a company. Its particularity lies in the fact that its existence depends on and is conditioned by the result of the first dismissal. Therefore, if the first dismissal results valid, there is no need for a precautionary dismissal; because the contractual nexus is definitely extinguished and the relationship between the company and the employee is extinguished from the date of the first dismissal.
Nevertheless, if the legal classification of the first dismissal implies the restoration of the contractual agreement between the parties through a reinstatement – in the cases of void or unfair dismissals if the employer acted in that sense – the dismissal ad cautelam would be functional.
The importance of a precautionary dismissal
The fundamental reasons in favour of the use of a precautionary dismissal are as follows:
- The limitation periods for labour infringements in Spain are brief; in the best possible scenario, in case of serious infringements, it is 60 days. Using the precautionary dismissal prevents the running of the period of limitation of labour misconducts.
- This concept prevents leaving infringing conduct unpunished, including the most severe sanction, the dismissal. Thus, the termination of the contractual relationship is guaranteed in cases in which the motives of the first dismissal are insufficient or would not be considered as such by a competent judge.
It should be noted that the precautionary dismissal is a concept not expressed in the Spanish legal system. Its adequate implementation and compliance with all of the legal deadlines should be left to lawyers specialized in this subject.
This article is not considered as legal advice