Notice of resignation by the employee (baja voluntaria) (ET art. 49.1.d)

Legal basis and things to bear in mind

• Legal framework: art. 49.1.d) ET plus the collective agreement.
• Someone who resigns is NOT in a situación legal de desempleo (legally recognised unemployment) under art. 267.2.a LGSS, which art. 266.c) makes a condition of drawing the benefit. Mind the citation: art. 267.1.a is the list of what DOES give you unemployment benefit, the opposite. And mind the wording: the right is not LOST, it never arises, and the contributions are not lost either, because art. 269.2 only excludes those already counted towards an earlier award.
• There ARE four ways of leaving at the employee's own initiative that do give unemployment benefit (art. 267.1.a.5 LGSS): relocation requiring a change of residence (art. 40 ET), a substantial change to working conditions (art. 41.3 ET), being a victim of gender-based or sexual violence (art. 49.1.m ET) and termination for the employer's breach (art. 50 ET). That last one requires bringing the CLAIM and obtaining a judgment: anyone who simply walks out has resigned under art. 49.1.d and is left with no compensation and no benefit.
• THE COSTLIEST TRAP, AND THE ONE NOBODY SEES: if you resign, join another company and do not get through the probation period, that dismissal only counts as legally recognised unemployment if at least THREE MONTHS have passed since the earlier resignation (art. 267.1.a.7 LGSS). One day short and you are left with nothing. It is the one variable the client can move, so they have to be told before they sign.
• The notice period is set by the COLLECTIVE AGREEMENT or, failing that, by local custom: art. 49.1.d ET sets no period and there is no statutory default. Nor does it authorise any deduction. A deduction for failing to give notice lives in whatever clause of the collective agreement expressly provides for it and, failing that, in the damages of art. 1101 of the Civil Code, which requires the employer to prove the loss and does not operate automatically. Do not present it to the client as a rule of law.
• The employer is obliged to hand over the certificado de empresa (certificate of employment) under art. 298.d) LGSS, implemented by art. 27 of RD 625/1985. It is NOT art. 209 LGSS, which sets the calculation base for the retirement pension: claiming under that citation falls apart in front of any adviser.
• Time limit for claiming a wrongly calculated finiquito: ONE YEAR from the end of the contract (art. 59.1 ET). Worth telling the client, because the product ends with the letter and that is precisely the item that gets trimmed.
• Natural companion procedures: finiquito_calculo, certificado_empresa.