May 2022. The largest residence in the Canary Islands, the Fundación Hogar Santa Rita in Puerto de la Cruz (Tenerife), is experiencing turbulent times. The workers call a press conference to demand the resignation of the managing director. In April, a new outbreak of Covid-19 had been detected in the center. At the beginning of that year, a court had opened proceedings, following a complaint from the Prosecutor’s Office, for an alleged case of mistreatment of its users during the pandemic. In January 2021, the center had to be intervened by the Ministry of Health due to a coronavirus outbreak that affected more than 250 people, including residents and staff, and caused the death of twenty. The medical team at the La Candelaria Hospital that assumed control of that crisis detected an outbreak of scabies and signs of malnutrition and dehydration among its users.
In this context, an anonymous letter reaches the hands of the works council. “Behind these lines we are a group of workers under an attitude of cowardice and helplessness because, logically, we are not in a position to express our feelings openly. The fear of losing your job is the worst thing that can happen to any parent, since that is where the most important thing is: dignity as a human being. It’s time to hold on, keep quiet and look the other way. “Defend with an absurd smile a reality that we classify as unjust.” Thus begins a letter that contains harsh accusations against the members of the foundation’s board, against the directors of the residence, whom it accuses of criminal acts.
The works council, as a whole (made up of members of CCOO, UGT and Intersindical Canaria), decided to publicize that letter that was circulating through different media. The then president and secretary of this committee, Jesús Suárez and Natalia Aparicio, posted it on the bulletin board, where it was displayed for less than an hour. The letter was withdrawn at the request of one of the workers mentioned.
The center’s security cameras captured the president and secretary of the works council placing the letter on the board. As a result of these images, the management opened a disciplinary file against them that ended in a dismissal for a “very serious” offense. Specifically, for “the commission and necessary and direct participation in the dissemination of a writing or pamphlet, anonymous without a signature, by placing it on the bulletin board for the exclusive use of the works council with highly defamatory, humiliating, slanderous, insulting, a real inflammatory libel” against the president of the foundation and the managing director.
Those dismissals that materialized in July 2022, two months after the events, have been annulled by justice. In the first instance, the Social Court number 4 of Santa Cruz de Tenerife had already ruled in favor of the plaintiffs, understanding that the foundation had violated the guarantee of workers’ freedom of association.
In that ruling, the magistrate rejected the validity of the images recorded by the security cameras for “a direct attack on freedom of association.” The resolution recalled that the installation of video cameras in the work environment is justified for safety reasons (“control of illegal acts attributable to employees, clients and third parties, as well as rapid detection of accidents”), but they cannot be used for “other types of control unrelated to safety”, such as “effectiveness at work, absences from the workplace, conversations between colleagues, etc.”
That first ruling concluded that the defendant entity had not proven that the real reason for the dismissal was “unrelated to the union actions” of Jesús Suárez and Natalia Aparicio as president and secretary of the works council. In addition to condemning the entity to reinstate them and pay them processing salaries, the judge established compensation of 20,000 euros for each of them for “the damages caused” of a moral nature. An amount that was considered adjusted by classifying the entity’s infraction as “very serious” and taking into account the duration of the employment relationship (the workers had seniority of 18 and 15 years) and the salary that each of the plaintiffs received.
The foundation appealed the ruling to the Superior Court of Justice of the Canary Islands (TSJC), arguing that the exercise of freedom of association “cannot simply justify the use of insulting, slanderous or vexatious expressions or names that exceed the right to criticism,” reason by which they understood that the dismissal should be classified as appropriate.
The Social Chamber of the Canary Islands high court rejected this claim due to an “insurmountable defect in substantiation” in the appeal presented by the foundation, since it referred to as “the only infringed jurisprudence” a ruling from a higher court of justice, which is insufficient. for that purpose. However, the TSJC considered the compensation set in the first ruling too high and reduced it to 500 euros for each.
The magistrates describe the exercise of freedom of expression by workers as “excessive and secretive” and, therefore, maintain that it is “difficult to protect within the right to representative action held by the members of the works council.”
This latest ruling confirming the annulment of the disciplinary dismissal of both workers is dated June of this year. Although an appeal could be made to the Supreme Court, none of the parties did so, so the ruling became final and, in fact, the plaintiffs have already returned to the residence located in Puerto de la Cruz.
“A retaliation”
Jesús Suárez explains that when he received that anonymous letter he decided to bring it to the attention of the works committee “due to its seriousness” and that he received the consent of all his representatives to place it on the board, as stated in the account of proven facts of the sentences. The worker considers that the dismissal was a “retaliation” for the criticism he had expressed in different media about the management of the pandemic in the residence and for the manager’s request for resignation.
“I only did my job as president of the works council,” highlights Suárez, who emphasizes that his intention was not to “harm” the entity. The worker points out that it was he himself who removed the writing from the board when one of the aforementioned parties requested it. In fact, in the judicial process he requested the complete recording of the cameras so that this could be verified. According to him, the entity “did not present it.”
At the trial, one of the witnesses, a member of the foundation’s board, acknowledged that this letter had also arrived by regular mail to his house, which is why Suárez rejects any accusation about the authorship of the letter.
The proven facts of the sentence include that, years before the opening of the disciplinary file and his subsequent dismissal, the then president of the works council, of the CCOO union, requested information about the residence’s security cameras. The foundation responded that their exclusive purpose was “surveillance and control of work activity, as well as security” within the company and that the cameras installed had existed “for a long time,” although it is true that they had been some were added and others had been replaced due to the deterioration of the originals.
The Catholic foundation Hogar Santa Rita is the largest nursing home in the Canary Islands. The center has capacity for 710 places, serves just over 500 residents, with a significant number of places arranged with the public administration, and employs more than 400 workers. The building is divided into two modules. The first was inaugurated in 1981 by Father Antonio Hernández, now deceased. The second was financed by the sale of “little pieces of heaven” that “were acquired every time one contributed to the work.”
The proceedings opened in a court in Puerto de la Cruz (Instruction 2) for alleged abuse at the residence were provisionally archived in March of this year, when the judge understood that there was not sufficient evidence of a crime of reckless homicide. The Prosecutor’s Office appealed that decision before the Provincial Court of Santa Cruz de Tenerife, which has not yet set a date for deliberation and ruling.
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