The worker's ineptitude as a cause of dismissal, according to article 52 of the Workers' Statute (ET). Here are the relevant aspects of this legal provision and how it affects both the employee and the company.
1. Context and Type of Contractual Termination
According to article 52 of the ET, the employment relationship can end due to the worker's ineptitude known or arising after their incorporation into the company. This type of dismissal, known as "objective dismissal," is linked to the worker's lack of aptitude, among other causes.
2. Definition of Ineptitude and Judicial Requirements
Ineptitude is defined as the lack of necessary skills for the correct performance of work functions, resulting in decreased performance. The Supreme Court describes it as an inability derived from the lack of preparation, updating of knowledge, or deterioration of professional resources.
The necessary requirements to justify dismissal due to ineptitude include:
- Subsequent: Known after hiring.
- Permanent: Not circumstantial or occasional.
- Attributable to the worker: Originating from the lack of preparation, updating, or deterioration of skills.
- Independent of the worker's will: Not due to deliberate action.
3. Causes of Subsequent Ineptitude
The causes of subsequent ineptitude can be:
- Lack of necessary knowledge.
- Lack of updating knowledge.
- Deterioration or loss of professional resources.
- Physical or psychological causes that prevent the exercise of work activity.
- Loss of legal requirements, such as a necessary driving license.
4. Communication and Compensation
The company must communicate the objective dismissal in writing, specifying the cause of ineptitude. A fifteen-day period is established for the definitive removal of the worker from the payroll and information is provided about the conditions of compensation.
5. Right to Compensation and Challenge
In the case of dismissal due to subsequent ineptitude, the worker is entitled to compensation of twenty days per year of service, with a maximum of twelve monthly payments. They can challenge the decision within a period of twenty working days after its effectiveness.
Dismissal due to subsequent ineptitude is a process regulated by the ET that protects both the interests of the employee and the company, ensuring that the decision is based on valid and objectively justified causes. Transparent communication and respect for the rights of the worker are fundamental for the correct application of this legal provision.