The most severe disciplinary sanction that can be applied by the employer consists in a disciplinary dismissal. Such a dismissal may apply when the employee has committed serious or repeated violations of:

• rules of labor discipline;
• rules established by the labor contract;
• rules established by collective agreement or rules of procedure.

An employer may apply the disciplinary sanction of dismissal in two cases:

• the employee has committed more misconducts (same or different) and repeated violation of obligations to work, no matter if he was sanctioned or not;
• the employee has committed a serious disciplinary violation.

The Labor Code does not specify the criteria for assessing the gravity of misconduct. In this context, the seriousness of the violation of obligations remains a situation of fact to be determined by the employer, according to the indications of Article 250 of the Code:

• the circumstances in which the offense was committed;
• the degree of guilt of the employee;
• the consequences of misbehavior;
• the general conduct of the employee;
• any disciplinary sanctions previously incurred by it.

Compliance disciplinary dismissal procedure is vital because any procedural flaw could void, even if, in fact, the employee is guilty of misconduct. Steps in the disciplinary dismissal procedure If is find that the employee acted with guilt, the employer is required to conduct a preliminary research. The employer should summon the employee in writing, stating the time, date and place of meeting. In this the employee is entitled:

• to formulate his defense and sustain the defense;
• to provide evidence and motivations deemed necessary;
• to be assisted by a representative of the employees or the union of which appears.

Listening and checking the employee’s defense is prerequisite which ends in practice by an explanatory note. Basically, the investigation file contains the following documents:

• the essay of direct boss with the facts committed;
• the appointment of the Disciplinary;
• convening the meeting employee discipline committee;
• explanatory note on employee;
• the final report of the research;
• the decision to sanction.

If the employee is not present in the research, he shows, but refuses to motivate or defense, the evidences and justifications are not likely to decriminalize him, the employer may use the disciplinary termination of the labor contract. Disciplinary dismissal decision will be issued in writing within 30 calendar days of the date on which the employer is aware of the offense having been committed and not to exceed 6 months from the occurrence of the event. The decision shall be communicated to the employee personally, with signature of receipt or, in case of refusal of receipt, by registered mail to his residence, within 5 calendar days after issuance.

Mandatory content of the decision of disciplinary dismissal:

• the description of the act that constitutes a disciplinary offense;
• specifying the provisions that have been inculcated as appearing in personal status, internal regulations or applicable collective labor agreement;
• why defenses have been removed by the employee during the prior disciplinary research;
• where appropriate, the reasons for which prior research has not been done;
• under the law under which the disciplinary sanction is applied (art. 264 par. 1 lit. F of the Labor Code) under the law under which loosen labor contract (Art. 61 lit. Of the Labor Code) the time in which the penalty may be challenged (30 days from communication) and the competent court (court of the county where the employee’s domicile).

If the employee who has committed serious or repeated violations is on sick leave, he cannot be fired. Prohibition of dismissal operates even when sick leave has been granted on the day the dissolution of the labor contract.

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