When applicable, this procedure speeds up the process of collecting workers’ work credits. Furthermore, we specialise in proceedings of this type, which is a relief to our clients, as pursuing these claims through ordinary proceedings is extremely slow compared to the alternative procedure.
Labour proceedings are used for claims against employers who are not in bankruptcy proceedings for amounts due, payable and of a certain amount arising from their employment relationship and which do not exceed 6,000 euros.
Collective claims brought by the workers’ representatives are excluded, as are those against the Social Security Management or Collaborating Entities.
(i) The procedure begins with an initial petition in which the complete and precise identity of the debtor employer, tax identification data, full address, and other data for locating and, where appropriate, communicating by computer and telephone, of both of the claimant and the defendant, as well as a list and breakdown of the specific items, amounts and periods, claimed.
A copy of the contract, salary receipts, company communication or acknowledgement of debt, certificate or document of contribution or employment history report, or other similar documents that prove the employment relationship and the amount of the debt, as well as documentation justifying the prior attempt at conciliation or mediation when these are required, must be attached. The application should be submitted electronically, if possible, or using the form provided.
(ii) the clerk of the court checks all the above requirements have been fulfilled, completing, where appropriate, those indicated in the application with other addresses, identification data or which affect the business situation, using the means available to the court, and gives four days to correct any mistakes, unless they are irremediable.
(iii) If the petition is admissible, the employer must pay the worker within ten days,, accrediting this before the court, or appearing and succinctly, in a writ of opposition, set out the reasons why they claim they should not pay all or any of the amount claimed, with the warning that if the claimed amount is not paid or the employer appears refusing to pay, an executive order will be issued.
(iv) The claim is forwarded for an equal term to the Wage Guarantee Fund, which may be extended for another ten days if it alleges that it needs to make enquiries about the facts of the application, in particular about the solvency of companies.
(v) On the expiry of these terms, the total amount having been paid or entered, the process is filed after the claimant is paid.
(vi) If no written and reasoned opposition is received from the employer or the Wage Guarantee Fund during the term, the court clerk issues a decree terminating the payment process and forwards it to the claimant to start enforcement proceedings.
(vii) If an appeal is correctly filed, the claimant may, within four days, file a complaint before the Labour Court in the manner foreseen in this article, in which case mediation and hearing will take place, as usual. Otherwise, the proceedings shall be dismissed.
(viii) On the other hand, if it has not been possible to serve the order for payment in the required form, the plaintiff will be notified to file a claim within the same time limit if it is in his interest following the same procedure as above.
If, on the other hand, the opposition is entered only in respect of part of the amount claimed, the claimant may apply to the court for an order upholding the claim in respect of the amounts recognised or not contested. This order shall serve as a writ of execution, which the applicant may apply for by simple writ without waiting for a decision on the amounts in dispute.
Claiming the payment of wages for processing in dismissal proceedings from the State
Following the Workers’ Statute and Labour Regulation Rules, when a court rules a dismissal unlawful, and the decision is issued more than 90 business days after the date on which the claim was filed, the employer may claim payment in place of wages to the worker for the period over 90 days from the state. It is important to note that this claim cannot be made if the dismissal is declared invalid. However, it is not possible to claim from the state when the parties reach an agreement. This is because, for the state to respond, the court must rule that the dismissal is unlawful, in the same way as occurs when the dismissal is ruled illegal in court. In addition, the illegality must be stated in the judgement.
Some minor case law establishes that salary payment in lieu can be claimed, even when part of them have been used to offset debts.
The state also pays any social security contributions corresponding to these salaries. It should be made clear that the concept includes contributions in the strict sense and amounts corresponding to accidents at work, unemployment, and contributions to FOGASA. Therefore, the employer must provide evidence that they have been paid. In contrast, the surcharges on the social security contributions should not be included because they have been paid late by the employer and for which he is entirely liable, nor should the IT supplement be paid by the employer, which is a voluntary improvement to social security. Lastly, when the worker has remained in an IT situation during the processing of the dismissal, and no wages in lieu have accrued, the company may claim social security fees that exceed 90 days because it is obliged to make the payments.
Employees should be that they can also claim the Social Security contributions in case of bankruptcy.
Our firm can help you claim the responsibility of the State for the payment of salaries in lieu in dismissal procedures.