The LFT and local labor laws protect workers against unjustified dismissals. For a dismissal to be considered unjustified, the following conditions must be met:
1. No legal cause for dismissal::
The legal causes for dismissal are established in the LFT and local labor laws.
2. The employer did not follow the established legal procedure for dismissal:
This includes notifying the employee in writing of the reason for dismissal and the date it will take effect, as well as paying the severance and seniority premium within 30 days following the dismissal.
3. Discriminatory dismissals:
Dismissals cannot be based on reasons such as race, gender, religion, age, or disability.
If an employee believes they have been unjustly dismissed, they have the right to:
- File a lawsuit with the Conciliation and Arbitration Board: The Board is a government agency responsible for resolving conflicts between workers and employers.
- Request reinstatement: The employee can ask to be reinstated in their position under the same conditions they had before the dismissal.
- Receive compensation: Severance pay is a sum of money that the employer must pay to the employee as compensation for the dismissal. The amount is calculated based on the employee's length of service and salary.
- Receive payment for unpaid wages: The employee has the right to receive payment for wages that were not paid from the date of dismissal until the conflict is resolved.
It is important to note that the time limit to file a claim for unjustified dismissal is 60 days, starting from the date the employee was notified of the dismissal. Consult with a lawyer or HR specialist from the SARAM HR team! A lawyer or HR specialist can help both your company and the employee determine whether the dismissal was unjustified and reach an agreement before it escalates into a lawsuit.
Measures to Consider in Case of a Lawsuit
There may be times when, despite a fully justified and proper dismissal, the employee decides to take legal action. Therefore, it is important to:
- Have a lawyer and cooperate with the Conciliation and Arbitration Board at all times.
- To plan a defense, ensure you have all documents related to the case, from the employment contract to the signed notification by the employee.
- Be proactive in the process and cooperate as needed to reach an agreement; a solid defense, supporting documents, and a justifiable reason for dismissal will be sufficient for a satisfactory resolution.
Common Mistakes in Dismissals
Dismissals are an inevitable part of working life for both employees and employers. However, it is crucial that they are carried out legally and fairly to avoid costly consequences for both parties. In this regard, it is essential for employers to be aware of the most common mistakes made in dismissals in Mexico and the measures they can take to prevent them.
A. Not Following the Legal Procedure
- Failing to notify the employee in writing of the reason for dismissal and the date it will take effect.
- Not paying the employee severance and seniority premium within 30 days following the dismissal.
- Not providing the employee with a work certificate.
B. Lack of Legal Cause
- Suspending the employee for discriminatory reasons, such as race, gender, religion, age, or disability.
- Suspending the employee in retaliation for exercising a right, such as reporting a wrongdoing within the company.
C. Improper Communication of Dismissal
- Not informing the employee of the decision with sufficient notice.
- Not being clear and precise in communicating the reason for dismissal.
- Not being respectful to the employee.
D. Not Offering Support to the Employee
- Failing to assist the employee in finding new employment.
- Not providing the employee with information about their rights.
E. Failing to Document the Suspension
- Not having a complete case file.
- Not keeping records of communications with the employee.
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