Conciliation act: aspects to take into account
Patrick Gordinne Perez2024-12-26T22:55:08+00:00After a dismissal, a conciliation act procedure is mandatory as a preliminary step before going to court.
In which cases is it advisable to reach an agreement?
In which cases is it not compulsory to go to conciliation?
But first of all, it is interesting to look at the word work-life balance. There are many types of work-life balance, family balance, work-life balance, banking balance, but in this article we are going to talk about work-life balance.
Actually, when we talk about work-life balance, we mean “acts of work-life balance”.
It is therefore important not to confuse conciliation or conciliation acts with family conciliation, banking conciliation or work conciliation.
Settlement letter
Filing of the conciliation petition
Conciliation because there is a dispute
When a dispute arises between the company and the worker (a dismissal, a debt claim…), both parties must try to reach an agreement in conciliation, a step prior to legal proceedings.
In these cases, start with conciliation:
Presenting the conciliation paper
- First of all, the worker must present the conciliation paper to the Mediation, Arbitration and Conciliation Service (SMAC) of the autonomous community, stating the facts on which the claim is based.
In the subsequent lawsuit – if no agreement is reached – no facts other than those alleged in the ballot may be alleged (unless they are new).
- The time limit for filing the SMAC conciliation paper is the same as that established for the corresponding lawsuit. For example, in the case of dismissal, it is 20 working days.
In general, the conciliation paper can be submitted physically or by telematic means (check if your autonomous community allows both options).
If the worker files a conciliation paper, the expiry periods are suspended (which will resume the next day after the conciliation attempt or after fifteen working days) and the limitation periods are interrupted.
What types of conciliation procedures are there?
Act of Administrative Conciliation
The interested parties may appear at the administrative conciliation act by themselves or through a representative.
In other words, it is not obligatory to attend with a lawyer or social worker, although it is highly recommended.
In these cases:
- The conciliation procedure takes place before an official who acts as a conciliating lawyer.
- This act can be classified as having taken place with or without agreement (the worker and the company appear and reach an agreement or not) or as having been attempted without effect (only one of the parties appears).
If the applicant does not appear without just cause, he/she will be considered to have withdrawn and the proceedings will be filed.
Judicial conciliation proceedings
Administrative conciliation should not be confused with judicial conciliation, which is the one that takes place just before the trial.
If there is no agreement between the parties in the judicial conciliation either, the trial will take place.
Is conciliation compulsory?
In which cases is conciliation not compulsory?
Cases in which conciliationis not compulsory
Conciliation is not always compulsory: this does not apply to procedures relating to temporary lay-offs (suspension of contracts and reduction of working hours), substantial modifications of working conditions, geographical mobility or rights to conciliate work and family life.
Conciliation is also not required if the proceedings concern the date of holiday entitlement, trade union elections or the protection of fundamental rights.
Likewise, conciliation is not compulsory in proceedings that require the exhaustion of administrative channels, those concerning Social Security, those relating to the challenge of collective dismissal by workers’ representatives, those challenging collective agreements or those in which labour actions for protection against gender violence are brought.
If the dispute refers to the worker’s right to take holidays, their duration or their remuneration, there must be conciliation.
Expiry of the conciliation proceedings
If the employee also submits a conciliation paper, this does not suspend the expiry of the limitation period.
In other words, if, when he subsequently files the lawsuit, the period allowed by law to sue has already expired, the action will have lapsed.
This will benefit the company if the employee mistakenly thinks that the time limit for filing the lawsuit has been suspended and the lawsuit lapses.
Example of an act of conciliation
A company gave notice of a transfer of establishment – involving a change of residence – on Friday 15 September 2024.
In such a case, the limitation period for suing the company begins on 18 September and ends on 16 October (taking into account the period of 20 working days, excluding weekends and the public holiday of 12 October).
So, even if the employee has submitted a conciliation request on 22 September (for example), this request for conciliation does not suspend the limitation period.
Therefore, if the claim is filed after 16 October, the action will be time-barred.
In which cases is conciliation compulsory?
Dismissal and amount
In all other disputes, a conciliation procedure must be held as a preliminary step before going to trial.
The most common cases are dismissal proceedings (whether disciplinary or objective), claims for payment, disciplinary sanctions or termination of the contract at the employee’s request.
The limitation period for filing a claim for payment is one year.
Does it matter to reconcile?
In these cases, it is in the interest of conciliation
It is advisable.
When an employee files a conciliation petition, it may be in the company’s interest to reach an agreement in the following cases:
- If it is a dismissal that can be declared null and void because the worker is in a “protected” situation due to a possible violation of fundamental rights, for example, if the employee is pregnant or has a reduced working day due to legal guardianship . In these cases, if the employee wins in court, the company must reinstate the employee and pay him/her the wages for processing the case.
- If aworkers’ representativehas been dismissed , be aware that, when the dismissal is declared unfair, the choice between reinstatement or compensation will be up to the worker, and in both cases, processing wages will have to be paid.
- If it is an objective dismissal and the causes are not “very clear”, the company can consider an agreement with a compensation of more than 20 days and less than 33 days (since, if it goes to trial and the dismissal is declared unfair, it will have to pay the maximum compensation).
- If an employee who is on sick leave has been dismissed. Sickness is currently one of the protected grounds for discrimination, so that the dismissal could be declared null and void.
- In the case of a claim for payment, if the amount is affordable and the employee has a chance of success (for example, if he/she claims a bonus provided for in the collective agreement and whose payment is somewhat doubtful but possible), it may be in the employee’s interest to reach an agreement for the lowest possible amount. It may also be in the interest of the affected party to avoid having to wait for the trial date (such trials are usually held over a long period of time).
In such cases, conciliation is not advisable
It is of no interest.
In other situations it may be advisable to go to court.
For example:
- In the above-mentioned cases of dismissal, you can wait for the trial if you have solid evidence that the dismissal will be declared justified, for example, if you have a recording that proves that the employee stole money or goods from the company (unless the amount of compensation is high and you do not want to take risks).
- If it is a claim for an amount that may lead to more “cascading” claims (if there are employees in the same situation who are waiting to see if the claim is successful), it may be in your interest not to settle and wait for the judgement. In such a case, the right of other employees to claim may be time-barred by the time the first employee’s judgment is rendered.
The worker does not go to the conciliation proceedings
In order to challenge a dismissal, it is compulsory to go to conciliation beforehand. However, what happens if the employee does not appear?
What happens if the worker does not appear?
Challenging a dismissal
The time limit for contesting a dismissal is 20 working days, and the first step is to file a conciliation petition.
Attendance at the conciliation proceedings is compulsory for the litigants.
Thereafter:
- In general:
If the worker fails to appear, the ballot shall be deemed not to have been filed and the proceedings shall be archived .
- Exception:
However, non-appearance will be justified if just cause is given.
It is considered a just cause to suffer a lipotimia before the conciliation or a breakdown in the car on the way to the conciliation, but not the lack of awareness of the time of the appointment.
If the employee does not attend the conciliation and files the claim, the employer may request that the proceedings be dismissed.
Consequences of not attending the conciliation proceedings
In practice, failure to attend the conciliation procedure has certain consequences:
- When a conciliation paper is filed, the limitation periods are suspended.
Thus, if the ballot is filed 14 days after the dismissal, there will still be six days after the conciliation to file the lawsuit.
However, if the paperwork is deemed not to have been filed (as a consequence of the unjustified failure to appear), the suspension does not occur, and the company may claim that the claim is time-barred if more than 20 days have passed between the dismissal and the claim.
- If the person concerned cannot go to conciliation, he/she must justify this to the SMAC.
In this case, a new summons will only be issued if it is possible to hold the act within 15 days of the presentation of the ballot.
If there are no working days left (because the 15 days have been exceeded), the employee must file the application and justify the reason for non-appearance to the judge.
The judge will decide whether the cause is justified or not.
If the just cause cannot be proven in advance (because, for example, the employee is ill on the day of the conciliation), it must be justified before the judge.
What happens in the dismissal trial?
The judgment may order the proceedings to be discontinued if the person concerned does not justify his failure to attend the conciliation, even if the application was lodged within the time limit.
If the employee does not appear at the conciliation, the ballot shall be deemed not to have been submitted and the proceedings shall be filed, unless just cause can be shown.