After a dismissal or several months without pay, people usually start by writing to HR, calling their union or reporting the employer to the Labour Inspectorate, and none of those steps stops the twenty working days you have to challenge a dismissal. The Inspectorate can fine the employer, but the fine goes to the public purse and gives you back neither your job nor your money. What the law requires before you sue a private employer, and what actually stops that count, is a conciliation claim (papeleta de conciliación) filed with the Xunta de Galicia’s Mediation, Arbitration and Conciliation Section, the SMAC, which reports to the regional Ministry of Employment, Trade and Emigration. Without that prior attempt your court claim cannot proceed, and the court gives you fifteen days to prove it before closing the case.
At Perseus & RC Abogados we draft and file the conciliation claim and attend the hearing with you. The work is handled by Ana María Reza Cortiñas, member no. 6064 of the A Coruña Bar Association and managing partner of the firm’s civil practice, and Luis Jurado Cano, member no. 6317. If you have been dismissed and want to know what you are owed, start with dismissals, and the rest of our employment work is on employment law.
Where it is filed and what it must say
The claim is filed on the Xunta’s electronic office under the pre-litigation labour conciliation procedure, code TR812A, or in person at an official registry. Companies, self-employed people, representatives and registered professionals must file electronically. Besides the A Coruña office, the SMAC has offices in Ferrol and Santiago, and the service itself summons both parties.
It must include the parties’ details, your job, category, length of service and pay, the facts behind the claim with the amount claimed and, for a dismissal, its date and the reasons the employer gave. The wording matters, because the court claim cannot rely on facts different from those raised at conciliation unless they are new. A claim that just says “dismissal” leaves out, for example, the pregnancy that makes the dismissal void or unpaid overtime nobody mentioned. The document is in Spanish, and we go through it with you in English before filing.
What happens to the deadlines
Filing suspends the dismissal deadline, which resumes the day after the hearing or fifteen working days after filing if no hearing has taken place. For money claims it restarts the one-year limitation period. If thirty working days pass without a hearing, the step counts as completed and you can go to court. Days used before filing are not recovered, and the days left afterwards are usually few.
The hearing
Attendance is compulsory for both sides, in person or through a representative with a power of attorney. If you fail to attend without a justified reason, the claim is treated as never filed, and you may lose the suspension of the deadline you were relying on. If the employer is the one missing, the attempt is recorded as without effect, and if the judgment later grants what you asked for, the employer will be ordered to pay costs, including your lawyer’s fees up to 600 euros. When the employer brings an offer, it has done the maths itself, so we arrive with two figures, what you are owed and what losing the trial would cost the employer.
If you reach a settlement
A settlement signed at the SMAC can be enforced by the court like a judgment, without further ratification, and can only be challenged within thirty working days on the grounds that invalidate contracts. Before signing we check two things. The first is who pays if the employer does not. The Wage Guarantee Fund (FOGASA) covers wages recognised at conciliation, but covers dismissal severance only when it appears in a judgment, court order, court-approved conciliation or administrative decision, not when it is agreed at the SMAC. With a struggling employer and payment in instalments, it may be better to settle on the day of trial before the court clerk (letrado de la Administración de Justicia), which the law treats as judicial conciliation. The other is tax. Severance agreed at the SMAC is not treated as a private pact and is exempt from income tax up to the amount the Workers’ Statute makes compulsory, with a ceiling of 180,000 euros, whereas the same sum agreed in a private document at the employer’s office loses the exemption on anything above what the law requires.
When there is no conciliation claim
Social security matters such as permanent incapacity, which require a prior claim to the INSS, holidays, geographical transfers, substantial changes to working conditions, work-life balance rights, the labour payment procedure covered in unpaid wages and the protection of fundamental rights, one of the routes against workplace harassment, are exempt. When the employer is the administration itself, such as the Xunta, a town council or the State, represented by its own legal service, there is no conciliation claim either, and in a dismissal the deadline is still twenty working days.
Where we are
Rúa Torreiro 13, 3.º C, 15001 A Coruña, Spain. Phone +34 677 841 007. If you have already filed and have a hearing date, tell us when you call, because preparing the figures takes a few days. If you live elsewhere, we prepare the hearing with you by video call.
Related reading
- Unfair, null or fair dismissal in Spain, what each means and what you can claim
- Unpaid wages or final settlement in Spain, how to claim what your employer owes you
- Dismissed in Spain, what you can claim and the 20-day deadline you can’t miss
Frequently asked questions
I cannot attend on the day of the conciliation hearing. What happens?
Tell the SMAC as soon as possible and give a justified reason, because if you fail to appear without one, your claim is treated as never filed. A representative can attend for you with a power of attorney granted before a notary or at the SMAC office itself. With that power, we can attend on your behalf.
My employer did not turn up to the conciliation hearing. What now?
The conciliation is recorded as attempted without effect and you can file your court claim with the certificate. If the judgment essentially grants what you asked for in the conciliation claim, the judge will order the employer to pay the costs, including your lawyer's fees up to 600 euros. The dismissal deadline resumes the day after the hearing, so the court claim must go in within the days you have left.
How long does it take for the hearing to be held?
It depends on the SMAC's workload. What the law sets is that if fifteen working days pass after filing without a hearing, the dismissal deadline starts running again, and after thirty working days the step is treated as completed and you can go to court without waiting. We track both dates from the day we file.
Can I raise something at trial that was not in my conciliation claim?
You cannot rely on facts different from those set out at the conciliation stage, unless they are new or could not have been known earlier. A forgotten amount or an unmentioned ground for voiding the dismissal can be left out of the trial. If you have already filed an incomplete claim, bring it to us quickly to see whether the deadline still allows it to be completed.
I work for a town council or for the Xunta. Do I also file at the SMAC?
No. When the employer is the administration itself, represented by its own legal service, there is no conciliation claim, and before suing you need to check whether the decision requires a prior administrative appeal. In a dismissal the deadline to go to court is still twenty working days, so it is worth checking on the day you are notified.