The Social Chamber of the Supreme Court has resolved this Monday that the employer must offer the worker the possibility of defending himself against the charges against himbefore adopting the termination of the employment contract due to disciplinary dismissal. A decision that consolidates the “prior hearing” process in dismissals of this type. Of course, the resolution is not retroactive.
As explained by the Alto Tribuna in a press release, the decision (which has been taken byor unanimity of the Plenary Session of the Fourth Chamber), is based on the need to directly apply art. 7 of Convention No. 158 of the International Labor Organization (ILO) which has been in force in Spain since 1986.
To do this, he modifies his own doctrine, established in the decade of the eighties, which justifies by “the changes that have occurred in our system during all this time“, such as the Law of International Treaties, the constitutional doctrine, the qualification of the dismissal and the inapplicability of the most favorable norm globally.
The ILO Convention requires this hearing prior to dismissal “unless it cannot reasonably be requested of the employer” and the Fourth Chamber understands that this is what happens in the case, which affects a professor ofand the Fundació Escola Superior D’art Dramàtic de Baleares that was reported by the students “for inappropriate behavior with female students“.
According to Europa Press, the professor appealed his dismissal, although the court initially ruled against him, and he subsequently appealed to the Social Chamber of the Superior Court of Justice of the Balearic Islands, which, in a ruling dated February 2023, declared the dismissal inadmissible and ordered the Foundation to reinstate the worker under the same conditions as before the dismissal.
This also includes the payment of processing salaries or, alternatively, the payment of compensation of 64,178.28 euros. The Foundation then formalized an appeal for the unification of doctrine before the Supreme Court.
The High Court now understands that the company was protected by a jurisprudential criterion that, having persisted over time and in relation to that same provision, freed it from the requirement of a prior hearing. Of course, the High Court specifies that such caution is “valid for dismissals that occurred before this ruling was published for the reasons it itself states.” ANDThat is to say, it is only required for new dismissals.
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