Dismissal in Spain: SMAC conciliation claim, finiquito and severance pay

The SMAC (Servicio de Mediación, Arbitraje y Conciliación, the mediation, arbitration and conciliation service) is the administrative body, run by each Comunidad Autónoma (regional government), where you try to reach an agreement before going to court. Filing the papeleta de conciliación is a compulsory prior requirement before you can sue over a dismissal (article 63 of Ley 36/2011, Reguladora de la Jurisdicción Social, the Spanish Employment Courts Act).

Three things can happen at the conciliation hearing: an agreement is reached (avenencia), which works as an enforceable title to demand compliance; no agreement is reached (sin avenencia), leaving the way open to sue; or the hearing is recorded as attempted without effect if the company does not turn up. Managora drafts the papeleta, files it with the SMAC office that covers your case and represents you at the hearing.

You have 20 working days to challenge the dismissal (article 59.3 of the Estatuto de los Trabajadores, the Spanish Workers' Statute). It is a caducidad deadline, a strict expiry period: once it runs out, you lose the right to claim with no way of recovering it. Time starts running the day after the effective date of the dismissal, and Saturdays, Sundays and the public holidays of the seat of the competent court do not count (article 103.1 LRJS, read together with article 182 of the Ley Orgánica del Poder Judicial, the Spanish Judiciary Act). August, by contrast, does count as working days in dismissal proceedings (article 43.4 LRJS).

Filing the papeleta de conciliación within those 20 days suspends the deadline (it does not restart it): it is paused until the hearing is held or until 15 working days pass from filing without the hearing taking place, at which point the deadline resumes for the days that were left (article 65.1 LRJS). That is why it is best to file it as soon as possible.

A dismissal can be disciplinary (for a serious and culpable breach by the employee) or objective (economic, technical, organisational, production related or personal grounds). It is then classified by an agreement or by the court.

Procedente, fair: the company proves the grounds. A fair disciplinary dismissal carries no severance (only the finiquito); a fair objective dismissal keeps the severance of 20 days per year. Improcedente, unfair: the grounds are not proven or there are formal defects, and the company must choose between reinstating you or paying severance of 33 days per year. Nulo, void: it breaches fundamental rights or amounts to discrimination (or affects protected situations, such as pregnancy or family leave), it forces reinstatement and payment of the wages you were not paid, and it allows no option to pay severance instead.

In an unfair dismissal the severance is 33 days of salary per year of service, with pro rata calculation by month for periods shorter than a year and a cap of 24 months' salary (article 56 of the Estatuto de los Trabajadores). In an objective dismissal it is 20 days per year, with a cap of 12 months' salary (article 53).

The salary used as the basis is the gross daily salary, including the proportional share of the extra payments (usually the gross annual salary divided by 365). For contracts signed before 12 February 2012 a double calculation applies: 45 days per year for the time worked up to that date and 33 days for the time after it. The result is subject to an overall cap of 720 days (24 months' salary); only if the period before 12 February 2012 on its own already produces more than 720 days does that higher figure act as the maximum, and it can never exceed 42 months' salary (fifth transitional provision of the Estatuto de los Trabajadores). Managora calculates the amount you are owed based on your length of service and your salary; you can see the reference on the service page.

The finiquito is the document that settles the amounts still owed to you when the employment relationship ends, and it is paid in every dismissal, whatever its classification. It is not the severance: they are different items and they are added together when severance is due.

It includes the salary for the days worked in the current month that have not been paid, the proportional share of extra payments not already spread across your payslips, holiday days accrued and not taken (paid in cash) and any other outstanding item (commissions, overtime or supplements). Managora reviews your payslip and your collective bargaining agreement (convenio) to check that the finiquito has been calculated correctly.

Signing the finiquito does not mean giving up your right to challenge the dismissal if you sign it with the wording 'no conforme' (not in agreement) or 'recibí, pendiente de revisión' (received, subject to review). Even when signed in agreement, the signature can be challenged in certain cases. If in doubt, it is best not to accept figures without reviewing them first.

If the company does not attend the conciliation, the hearing is recorded as attempted without effect and you can still sue; on top of that, its unjustified failure to appear can lead to a costs order against it. Managora is with you throughout the process, from the papeleta to the court hearing.