LEGAL BRIEF:
Reinstatement After a Dismissal Deemed Unfair / Irregular Reinstatement
After a dismissal is declared unfair, the employer has the option to reinstate the employee under the same conditions that applied before the dismissal or, alternatively, to pay the appropriate severance compensation (Article 110 of the LJS).
According to the literal wording of the legal provision, the employee's reinstatement must be done "under the same conditions that existed before the dismissal." However, it should be noted that no automatic criteria exist for considering a reinstatement irregular, as it is always possible to analyze the circumstances of each case, including potential modifications to the working conditions within the employer’s reach.
If the employee has filed a claim and obtained a judgment declaring the dismissal unfair, the company has 5 days to choose between compensating the employee or reinstating them. It is important to note that this is the company's option, not the employee's, and if the company does not make a choice, an incident of non-reinstatement should be filed.
Once the request for the Incident of Non-Reinstatement is filed, the court will need to summon the employee and the company for a hearing to discuss the reasons why the company did not reinstate the employee. In this hearing, the company must demonstrate that it acted in accordance with the law and that it did not reinstate the employee due to some breach by the employee or due to some justified impossibility (such as company closure, material or legal impossibilities, etc.).
Consequences of the Incident of Non-Reinstatement
If it is determined that the company should have reinstated the employee and did not, the court will order:
- The termination of the employment relationship as of the date of the resolution on the Incident of Non-Reinstatement.
- Payment of processing wages from the date of the judgment until the day the employment relationship is terminated.
- Payment of severance compensation for unfair dismissal.
In summary, when a dismissal is declared unfair, the employer must choose between reinstating the employee under the same conditions as before or providing severance compensation. If the employer opts not to reinstate and fails to take action, the employee can file an Incident of Non-Reinstatement. The court will then assess whether the employer acted in compliance with legal requirements. If the court determines reinstatement was warranted but not performed, it will mandate the termination of the employment relationship, payment of processing wages, and severance compensation. This process ensures that employees' rights are protected and that employers fulfill their legal obligations.
Leocricia González Abogados.