Can I be fired because of the energy crisis? How to veto the war in Ukraine

The government has once again restricted layoffs by law, this time to prevent companies affected by the Ukraine war from firing staff due to rising energy costs. The goal is for companies with problems to apply the pandemic star correction mechanism: ERTE. The Council of Ministers on Tuesday approved a state aid package to prevent economic damage through conflict in the energy, transport sectors and the new ICO line of credit, among other measures. He also gave the green light to the new veto on the objective release.

The dismissal restriction approved this Tuesday is not the same as that agreed during the COVID pandemic. The Ministry of Labor, led by Vice President Yolanda Diaz, insisted on the need to re-approve the dismissal restriction so that troubled companies could return to ERTE, as happened during the corovirus crisis. Ahead was the first vice president, Nadia Calvino, who publicly answered questions about Labor’s claim that the damage caused by the conflict in Ukraine was very different from that of COVID.

Finally, the restriction on dismissal has moved forward, but it is not as widespread as approved during the pandemic, as the situation and the economic damage caused by the Russian invasion of Ukraine are different. Because of COVID, the whole country came to a standstill and there were direct restrictions on many sectors that had capacity restrictions or even bans on their activities. By this time the damage is more localized, with large increases in energy prices and difficulties in delivering certain raw materials, which has led the government to tighten its veto on dismissals due to war.

“I am sending a clear message to businessmen,” said Vice President Yolanda Diaz after the end of the Council of Ministers. “When there are social protection mechanisms, there is no need to shoot. We have already done that, please repeat it again. ” Vice President Calvino also noted that it was “common sense” that companies receiving state aid for this crisis could not lay off workers. The CEOE’s employers’ association rejected the measure, as well as the rent-raising limit, which it called “dangerous” in the “free world”.

What dismissal is prohibited?

The government is legislating that direct-benefit beneficiaries approved this Tuesday will not be able to objectively lay off their workers due to “increased energy costs” by June 30, 2022. Yes, they can do this for other reasons such as lack of raw materials. .

Secondly, companies that use ERTE for reasons related to the invasion of Ukraine, as long as they are eligible for assistance, will not be able to use these reasons to justify the objective dismissal of their staff. The wording of the rule here is broader: it addresses the “reasons for the invasion of Ukraine”, so it affects both rising energy costs and a lack of supply or other side effects of the conflict.

These reasons do not justify an objective dismissal that has a paycheck of 20 working days per year.

Is ERTE eligible for dismissal?

Yes, according to the text of the decree, the objective dismissal is vetoed in the companies due to the war in ERTE “who enjoy public support”. When asked about this, the Ministry of Labor answers that it refers to those ERTEs that have training assistance. These are ERTEs due to force majeure with 90% exceptions and ETOPs if they offer training for the workforce with 20% exceptions.

Thus, if a company uses ERTE for objective reasons (ETOP) due to war and does not offer training to affected workers, it will not be eligible for contribution assistance and will not be affected by an objective veto of dismissal nor will it be affected.

What state aid prevents dismissal due to energy costs?

According to government sources, all types of direct assistance are included in the package of measures approved by the decree this Tuesday. It is expected that this provision will cover a large number of companies as the ordinance contains a wide range of direct assistance as a new line of ICO credits as well as direct assistance in the fuel, industry, transport and agriculture sectors. Among others.

Can’t these companies get any exemptions?

Yes, some do. As happened during the pandemic, the government regulates that these companies for some reason can not justify an objective dismissal. In this case for the economic damage of the Ukraine war. But companies that receive state aid for this crisis and / or that apply to ERTE can still be fired for other reasons.

For example, disciplinary dismissal in the event of serious misconduct on the part of the employee or objective dismissal for reasons other than invasion of Ukraine, such as “inability of workers” and “non-adaptation of the worker to technical changes in his job position.” “, Which are included in the charter of workers, by the way.

What if the company is released for war?

It is commonly referred to as “prohibition” on objective release, although lawyers are very skeptical of the term and are more inclined to “veto” or “restrict” it, as this can happen in practice. What the government has proven is to establish that war damage does not justify objective dismissal, but companies (in practice) can do it. Of course, they have to face the consequences, which will have a significant impact on their pockets.

The executive has ruled that companies that receive state aid must repay the aid they receive in the event of layoffs due to war. But, in addition, a victim of dismissal can sue the company in court to appeal the dismissal.

Pending the interpretation of the judgment by the court, the judiciary may declare the dismissal unjust, oblige the company to reinstate the employee or pay compensation equivalent to 33 days of salary per year employed; Or null, for which the worker must be reset. In any case, the company has to pay salaries that it did not receive in the months when the victim was abusive in office.

What happens to temporary contracts?

In companies that are covered by a veto on an objective exemption, temporary contracts can be terminated when they are justified by a reason. If this happens in the next three months, even by June 30th. There are no changes in this regard. Compensation payable to workers in this case reaches 12 days per year employed (or a proportionate share in the case of lesser labor).

Of course, if the company terminated the contract temporarily because of the war and not because of the reasons for terminating the contract, the victim could have appealed the dismissal in court, recalls labor law professor Adrian Todol. In this case, if it were declared that an unfair dismissal had taken place, the remuneration would have been much higher: he had worked 33 days a year.

During the pandemic, the veto of dismissal was also directly used to terminate temporary contracts. The Government found that the objective reasons for the pandemic “could not be construed as a justification for termination of employment or dismissal”, but in this case this provision was not taken into account. Now a new labor reform, restricting the use of temporary contracts, is already in force with the modalities of the new contract, effective March 31. Temporary contracts entered into before this date may be extended in these situations as long as their cause is maintained.