If you think that your working conditions have been substantially altered for the worse, you are not paid the salary or wages agreed, or you feel that your employer has not held to the contract in any way, you should claim against your employer.
In Labour disputes, it is mandatory that the parties try first to resolve their dispute through conciliation or mediation, for which the participants choose to accept a resolution proposed by a mediator, before placing any claim before courts.
Then, firstly, you shall file your claim before the Arbitration office (Instituto de Mediación, Arbitraje y Conciliación), in order to reach an agreement with your employer.
When the case cannot be settled by mutual agreement, you may bring suit before the labor courts (Magistratura de Trabajo) within 20 working days after your rights had been infringed.
The judge will declare whether the situation is unfair or not. The judge may, either consider that the employer’s decision is justified and proved or determine that your employer shall compensate you by paying compensation or by or re-employing you.
The judge’s decision may be appealed before a superior labour court.
Each case vary widely according to the field of work. If in doubt about your rights you should consult a Spanish Lawyer.
So your salary has not yet been paid, and it does not seem possible that you’ll ever receive it, given that your employer has become insolvent. What should you do?
The Spanish State may intervene to provide a wage guarantee for workers in the case of companies in crisis. Employees may recover part of their indemnities, salaries or wages underpaid or non-paid by the employer and owed to them.
The Spanish Salary Guarantee Fund (Fondo de Garantía Salarial – FOGASA), which depends on the Spanish Ministry of Labor (Ministerio de Trabajo), pays the amounts owed to employees: their indemnities, salaries and wages, which are pending of payment because the employer had been declared insolvent, in a state of suspension of payments or in bankruptcy.
The Fund subrogates then to workers’ rights in relation to companies in order to recover for itself the debts owing.
Payment of the indemnities, salaries or wages is subject to some limits and restrictions, depending on the circumstances of each case.
Employees may apply for their pays to this entity within 1 year from the date of the judge’s decision declaring that the employer is insolvent. The applicant will be required to present certain documents justifying the non-paid indemnity, salary or wages (e.g. the dismissal letter, the court decision, etc.).
It is strongly recommended to have a Spanish Lawyer handle your application, as they know the ins and outs of the paperwork.