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An employment relationship involves the employer and the employee, both have reciprocal rights and obligations that are usually stipulated in a contract or by a prior agreement, which establishes the work to be performed, remuneration, working hours, benefits, among other information.
The relationship may end by voluntary resignation, termination or unjustified dismissal, and when an employee is faced with the latter situation, he/she probably does not know how to act.
Regardless of the contract and the company’s internal regulations, the Federal Labor Law defines some causes of termination for which the employer may terminate the employment relationship in a justified manner and without liability for the employer:
An unjustified dismissal is considered to be the termination of the labor relationship by the will of the employer without a justifiable cause, for example, an employee who is not liked by the employer, the implementation of machinery that replaces the employee’s work, among others that are not provided for in the Federal Labor Law.
Also, if the employee was not notified with a notice of termination issued personally to the worker, or through the Conciliation and Arbitration Board, it is considered an unjustified dismissal.
If this has been your case, you may exercise your right to sue before the Conciliation and Arbitration Board for unjustified dismissal, requesting reinstatement in your former position, or a severance payment.
In the event of a dismissal without a reason recognized by Law, the employee has the right to file a lawsuit for unjustified dismissal and request to be reinstated in his position with the same terms.
In addition, he/she has the right to have his/her seniority recognized during the duration of the lawsuit, to be considered for a promotion, to receive back wages from the date of dismissal until reinstatement to work and to the payment of contributions to the retirement savings system.
The lawsuit for unjustified dismissal also contemplates a severance payment which includes the payment of three months’ salary for constitutional indemnity, seniority premium, proportional part of the Christmas bonus, vacation premium and benefits that have not been paid.
All of these rights are found in the Federal Labor Law (LFT), Articles 48, 87, 79, 80 and 162. After a dismissal without justification established in said Law, the employee has a term of two months from the day after it occurred to file a lawsuit, in accordance with Article 518 of the Federal Labor Law.
The Political Constitution of the United Mexican States protects workers against unjustified dismissals. If this is your case, you can go before the Conciliation and Arbitration Board, either state or federal, depending on your place of work, to file a report; there you will be assigned a public defender and a date will be set for the first hearing between you and your former employer.
If you use a court-appointed attorney, the process can be slow and drag on for several months (even years), so it is best to seek professional services to file a wrongful termination lawsuit to obtain justice. The lawsuit can be filed the day after the dismissal occurred, or within a maximum period of two months thereafter.
In the lawsuit, both parties must present all the evidence so that the Board may determine by means of an award whether the dismissal was justified or not, and resolve on the action that the worker has requested.
In the trial, the Board, considering the circumstances of the case, the applicable labor legislation and the evidence offered by the parties, will determine by means of an award whether the dismissal was unjustified or not, and will decide on the reinstatement or indemnification, depending on the action that the employee has exercised.
If the reinstatement is established, the employer must pay the wages due from the date of the dismissal, with a maximum period of twelve months thereafter. And if this period ends without the process having been concluded, the employee will be paid the interest generated on the amount of 15 months of salary, at a rate of 2 percent per month.
Now, for many workers it is uncomfortable to return to their position after an unjustified dismissal, so severance pay is the most requested alternative. In this case, it is possible to request the payment of:
If you have been unjustifiably dismissed, you are not alone! At LEX & CO we are labor lawyers, experts in labor law and we can help you. Call us at 5568401076, write us through our contact form or WhatsApp and tell us about your case.
Carlos Figueroa Rodríguez, attorney at law at Lex & Co. He has more than 10 years of experience in specialized cases involving medical malpractice and insurance claims. He is a graduate of the Universidad Anáhuac and has a Master’s Degree in Constitutional Law and Amparo from the National Bar Association. He also has a Doctorate in Juridical Sciences from the UCI Mexico. Professional license 6577215.