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Is it valid to terminate a worker's contract after repeated faults? The keys to the ruling of the Constitutional Court

| News | Employment Law and Social Security

Alfredo Aspra explains in El Economista that an intermittent repetition of absenteeism on the part of the worker can lead to his dismissal if they reach thresholds that the employment legislator considers enough to justify absenteeism

Can the dismissal decision be based on absences from work due to circumstances beyond the employee's control, such as temporary incapacity? The Constitutional Court concludes in favour of article 52 d) of the Worker’s Statute because it does not regulate a dismissal linked to the mere situation of illness or temporary incapacity of the worker, but to the intermittent repetition of a number of absences from work which, regardless of their possible justification, reach thresholds that the labour legislator considers sufficient to justify absenteeism.

The precept itself contains a series of limitations to avoid possible unjustified situations or that could violate the constitutional rights of the worker through the exclusion of cases of prolonged medical leave. The 2012 labour reform introduced a double time limit to undertake the extinctive decision in order to avoid that the mere accumulation of absences in a short period of time could give rise to the valid extinction of the labour relationship, establishing a second filter or annual calculation limit.

The Constitutional Court states that there is a certain disconnect between dismissal linked to intermittent absences and the rights intended to be protected by the Constitution, since these would be guaranteed both by the limitations of article 52 d) itself and by the possibility of accessing health care and benefits of the public health system.

You can read the article in El Economista.

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