Now, for the additional compensation

The Social Chamber of the Supreme Court (TS) has just decided that any worker dismissed disciplinaryly has the right to be heard before the dismissal becomes effective. Therefore, the company must give you an opportunity to make allegations against the charges. It’s not a minor thing.

First, because of how surprising it is. The Supreme Court had maintained the opposite for almost 40 years (1987), that is, that our national legislation does not contain such a right for every working person, only for a handful of cases. Second, because it represents a shock to the practice followed until now, due to the Copernican turn it represents in the usual way, until today, of managing dismissal decisions by personnel departments. Hence, it was a ruling that was both expected by workers and feared by companies, understanding that it generates additional obstacles to dismissal and greater management uncertainty.

So, how has this surprising jurisprudential turn come about? The reason lies in the preferential application to national law of an international one, art. 7 of ILO Convention 158, on termination of the employment relationship, which requires this prior procedure, except in those – exceptional – cases in which it is not “reasonable” to ask the company to wait for this prior defense.

Although this international standard has been in force in Spain since 1986, until now the TS has maintained that it was not directly applicable by the Spanish Courts. The TS reasons that it erred in the past interpretation and that the correct one is the current one, among other reasons, due to the need to take into account the “changes that have occurred in our system during all this time.” And among these changes are not only the labor reforms that have weakened the protection of the worker against dismissal without cause (e.g. elimination of processing salaries, elimination of the nullity of dismissal without due form, etc.), but also the new vision we have, after Law 25/2014, of November 27, on International Treaties, of the prevalence of international standards over national ones. It was only 6 years ago (2018) that the Constitutional Court authorized the ordinary Courts to displace the internal norm and apply the international norm with preference, if they detect a contradiction of this over the national one.

We believe that this ruling should be evaluated very positively and, in our opinion, it sends a very clear message to other matters pending decision by the Supreme Court regarding dismissal. Notably, the issue of “additional compensation”, to which, according to art. 10 of the same ILO Convention 158 and art. 24 Revised European Social Charter (CSER), people unjustifiably dismissed have the right. As is known, the European Committee of Social Rights has condemned Spain (Decision March 20, 2024, UGT v. Spain) for not recognizing adequate compensation, in terms of full reparation for all damages and with a deterrent effect against unfair dismissals. . Consequently, the primacy of the international standard interpreted in a certain sense by the bodies that monitor its compliance, which the TS now recognizes, seems to be announcing that the TS is also going to apply the international standard by modifying the maximum amount of compensation in case of unfair dismissal, consistent with the doctrine of this ruling that we have just heard.

It should be remembered that in the case of the Revised European Social Charter (CSER), the Spanish Ministry of Justice already recognized, in a report from the Council of State (File: 486/2021, July 8), its “legally binding and the decisions of the Committee of Experts are mandatory.” Therefore, given that, as has been recalled, there is a decision by the CEDS, which is responsible in the European Social Charter for monitoring compliance by the States with the rights recognized therein, expressly condemning Spain, it does not seem to be It is reasonable to think that the Supreme Court is going to deviate from this doctrine when it examines the amount of compensation for unjustified dismissals.

In short, this relevant ruling illustrates that we live in a new legal-labor time, in which the defense of “the old” must give way to the construction of “the new”, giving the prominence and prevalence due to the international guarantees of the labor rights. The EC and the Spanish law on international treaties require it, their precepts are binding, and must be interpreted in accordance with the consolidated doctrine of their guarantee bodies. This has been ruled, putting an end to the contradictions in judicial doctrine, for the hearing prior to the termination of the employment relationship art. 7 C158 ILO, and there does not seem to be any legal reason why the same should not be done with the additional compensation with a restorative and dissuasive effect required by art. 10 C158 ILO and art. 24 CSER, as confirmed to us again by the CEDS. We will see.

#additional #compensation