There have been many Councils of Ministers to have guaranteed that this “great advance” of the hearing prior to disciplinary dismissal governed with certainty and legal certainty in our Law. And the same goes for the issue of compensation for unfair dismissal.
On November 18, the Social Chamber of the Supreme Court, meeting in plenary session and unanimously, resolved that, before deciding on the disciplinary dismissal of a worker, he must be given the opportunity to defend himself against the charges made against him.
Decision based on the consideration of the necessary direct application of Article 7 of Convention No. 158 of the International Labor Organization (ILO), of June 22, 1982, in force in Spain since April 26, 1986.
This article has a simple and easy-to-understand wording – beyond the legal issues to which I will now refer. It reads as follows: “A worker’s employment relationship should not be terminated for reasons relating to his conduct or performance before he has been given the opportunity to defend himself against the charges against him, unless it cannot be requested. reasonably to the employer who grants this possibility.”
Well, in Spain this forecast had gone practically unnoticed. Let me explain with some nuance: between 1987 and 1990 the Supreme Court had already addressed this issue and concluded, briefly expressed, that the rules of said Convention at this point are not directly applicable in Spain by specifying its effectiveness from an internal regulatory development, On the other hand, there are sufficient guarantees for the defense of the worker in the regulation of dismissal. Later, between 2008 and 2019, several Superior Courts of Justice had also rejected the application of this rule based on the doctrine of the TS. And there has been little more about it.
Until February 13, 2023, the Social Chamber of the TSJ of the Balearic Islands issued a momentous ruling, later followed by some other courts, but by no means by all, ruling in favor of the direct applicability of art. 7 of the aforementioned ILO Convention, after an extensive study of the issue. And concluding that the failure to comply with this elementary guarantee, this right to a prior hearing, is a serious business failure that must determine, for this reason alone, the declaration of inadmissibility of the contested dismissal, condemning the company in the legal consequences of this declaration . The ruling, appealed by the company, is the one analyzed by the aforementioned TS on November 18, in relation to the existing contradictory doctrine.
And the TS, which had the old thesis mentioned above, now modifies its doctrine due to the regulatory changes – International Treaties Law, 2014 – and the recent doctrine of the TC and determines the direct application of the aforementioned art. 7 of the Convention, given that it is considered to be a complete and automatically applicable rule, without specifying implementing rules that must be issued by Spain since its terms are sufficiently and duly specified, although it has not been developed legislatively in our country and although The manner in which said prior hearing is to be carried out is not stated.
It does so, in any case, clarifying that, given that the company – this company and all the others –, by not giving the worker that prior hearing, has acted based on the jurisprudential criteria in force to date, the provision of The international precept of excluding the obligation of said hearing when it “cannot reasonably be requested of the employer” must be applied in this case, thus freeing the company from said requirement and the consequences of non-compliance. A criterion applicable “to dismissals that occurred before said Judgment was published.”
The TS also remembers, a very relevant reminder in my opinion, that “the Spanish State has been showing its disagreement with the questions it has been receiving from the Commission of Experts on the Application of Conventions and Recommendations, considering that our legislation covers the requirements of art. . 7 of Convention No. 158”. That is, the State itself – read Government, which is the one that responds to these interpellations – has been rejecting those appeals from the ILO itself made between 1990 and 1994, as stated in the corresponding Report.
The truth is that, regardless of the direct applicability of said Convention, an internal legislative development that would have contemplated this formal requirement of a prior hearing for disciplinary dismissals would have been more than desirable. It would have allowed this formality, based on the right of defense, to be required, and in a certain form – a form that, at this moment, is not specified – and, of course, the consequences of non-compliance would be known.
No Government has addressed this issue since 1986. Nor has the current one, despite having known, due to the great impact it had, the aforementioned Ruling of February 2023 of the TSJ of the Balearic Islands. And it was simple, very simple: it would have been enough for any Tuesday, in a Council of Ministers, to have approved a Royal Decree-Law to modify article 55.1 of the Workers’ Statute and expressly incorporate this requirement to guarantee that right. defense of workers against disciplinary dismissal before it occurs. It has not been done, but everything has been expected and trusted, once again, to the actions of the Courts in interpretation of an international norm in force in Spain.
And once again I remember that people’s lives are improved infinitely more effectively in the BOE than in any social network. What comes to mind is that on the same day, November 18, the Minister of Labor, Mrs. Díaz, published a note on the all. “It is a great advance that the Supreme Court recognizes that no one can be fired without having previously defended themselves.”
That said, there have been many Councils of Ministers to have guaranteed that this “great advance” governed with certainty and legal security in our Law.
And the same goes for the question of compensation for unfair dismissal, which you have already written about here on several occasions. Once again waiting for the TS – which does what it is constitutionally responsible for, like the rest of the Courts, that is, interpreting and applying the rules –, even though the Workers’ Statute could have been modified to comply with the articles. 10 of Convention No. 158 ILO and 24 of the European Social Charter and the Decision of the European Committee of Social Rights published on July 29. And to also comply with the requirement that the Committee of Ministers of the Council of Europe has made to Spain in this regard to proceed to establish an adequate and dissuasive compensation system for companies for unfair dismissal. What is still pending and about which there is no news, despite the fact that Minister Díaz spoke in this sense a long time ago and that the program of the current coalition Government contemplates a reform that establishes “guarantees for working people against the dismissal, in compliance with the European Social Charter…”, and as also stated in the Government’s Annual Regulatory Plan for 2024 in which a Law is announced to modify the Workers’ Statute regarding dismissal, in which exact terms of the Government Program. Well, we still don’t have anything at all.
Although a non-legal Proposal was just presented on Thursday, November 28, by the Euskal Herria Bildu Parliamentary Group so that the Congress of Deputies urges the Government to increase the reference compensation, “recovering the sufficiency prior to the “Labor Reform of 2012 through modification of labor legislation regarding dismissals.” I don’t know how it will end, but, for now, we are still waiting for the Courts.
So the Supreme Court is going to resolve this issue and it seems that it will do so in this very month of December: we will see in what sense and I will confirm again – perhaps also in this same opinion space –⁹ the convenience – and, in this specific case, surely the need – to address its regulation, regulation that is already late, very late.
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