Table of Contents
- Intro
- What if the company doesn't come to the trial
- Target dismissal for economic reasons: the company must prove them
- When the real reason is medical leave
- Nulity and, alternatively, inprovenance
- (b) LRJS
- Real case
- Summary
- Frequently asked questions
- Conclusion
1. Introduction
Many workers wonder what happens if the company that has fired them does not come to trial. The answer is clear: the trial is also held, and the absence of the company often plays against it. If the dismissal was also intended for economic reasons, but coincides with the return of a medical leave, the non-appearance may make it easier to declare it inappropriate or even null.
2. What if the company doesn't come to the trial
According to the Law regulating social jurisdictionif the company has been duly cited and does not appear, the trial is held without it, without the need to declare it in absentia. The company thus loses the opportunity to defend itself and to provide evidence.
In addition, the worker may ask the judge to have the company confesses, that is to say, to consider the facts that harm him, which is known as Fit confession. In practice, the facts alleged by the worker may be considered as proven.
3. Target dismissal for economic reasons: the company must prove them
The objective dismissal for economic reasons requires that the company attests to a real negative economic situation, such as losses or a persistent decrease in income, and that dismissal is a reasonable measure in this situation. The burden of proof is on the company. If it does not prove it, and even less so if it does not even appear at the trial, the dismissal cannot be considered appropriate.
4. When the real reason is medical leave
A letter of dismissal for economic reasons often hides another reason: that the worker has just returned from a medical leave. If the company does not establish the economic causes it invokes, it is clear that the real reason for the dismissal is medical leave, which allows it to apply for annulment. We explained in our article about the dismissal for medical leave and the one dedicated to the violation of the right to equality in the field of work.
5. Nulity and, alternatively, inprovenance
The application may, as a main request, request that the dismissal be declared null and void as discriminatory and, in a subsidiary manner, that it be declared inadmissible if the judge does not appreciate the invalidity. The consequences are different:
- Nulity: compulsory readmission with the payment of unpaid wages.
- Improvenance:: The company may choose to readmit or compensate with 33 days of salary per year worked.
6. (b) LRJS
Where readmission is not possible, for example because the company has ceased to function or because it does not even appear, the worker may ask the judge, if he declares that it is incompetent, to directly extinguish the employment relationship in the judgment itself, in accordance with the Article 110.1.b of the Law on Social Jurisdiction.
The advantage is important: it avoids having to deal with an irregular readmission incident and can be transferred directly to the enforcement of the sentence to collect compensation.
7. Real case
In the video, at the door of the trial, we explain that the company, although properly quoted, will not appear. We will therefore ask the judge to confess it and, in view of the letter of objective dismissal for economic reasons, to consider it proved that the real reason for the dismissal is that the worker was reinstated from a medical leave, as the company does not substantiate the economic causes. We will call for nullity and, on a subsidiary basis, inprovenance. And if there is a declaration of inorigin, we will ask that the employment relationship be terminated in accordance with Article 110.1.b) LRJS, because in this case readmission is impossible.
8. Summary
| Status | Consequence | Legal basis |
|---|---|---|
| This company does not share | The trial is held without it | LRJS |
| Don't go to the interrogation. | The facts may be considered to be recognized (confession) | LRJS |
| Unproven economic causes | Unappropriate dismissal | Staff Regulations |
| Dismissal caused by medical leave | Nullity of dismissal | Main application |
| Impossible readmission | Extinction in judgement without readmission incident | Article 110.1.b) LRJS |
9. Frequently asked questions
Is the trial suspended if the company does not show up?
No, if the company has been duly cited. The trial is held without it.
Do I win automatically if the company doesn't share?
Not automatically, but the company cannot defend itself or prove the causes of the dismissal, and the judge may have for certain the facts you claim.
Can you fire me for economic reasons when I get back from a medical leave?
Only if the economic causes are real and credited. If the real reason is the loss, the dismissal may be null and void as discriminatory.
What is the point of calling for the termination of Article 110.1.b?
So that, if readmission is not possible, the judge extains the relationship in the sentence and can go directly to collect the compensation.
10. Conclusion
That the company does not come to trial does not paralyze the procedure: on the contrary, it prevents it from defending itself and proving the causes of the dismissal. The application, with the nullity as a main request and the termination of Article 110.1.b (a) as a guarantee, allows the worker to come to execution with all open options.
In the area of Labour law de Leynver Abogados we accompany you throughout the procedure for dismissal, from the lawsuit to the collection.
