The end of the 33 days per year worked: Spain faces severance pay a la carte
The Plenary Session of the Fourth Chamber of
the Supreme Court
has applied the guarantee of indemnity and has
declared null and void the dismissal
of a
worker
with a
temporary contract,
who was dismissed the day after he expressed his
disagreement with the lack of payment of excess hours.
The high court affirms that the company alleged as
the cause of the disciplinary dismissal
a
decrease in performance
that was not proven, and adds that the dismissal, immediately after the claim, made it impossible for the worker to make any legal claim, according to Europa Press.
The ruling argues that, as a general rule, internal claims within the company do not activate the indemnity guarantee, but
if a worker makes an internal claim and is immediately dismissed,
without the company proving the existence of breaches that justify contractual termination, the impossibility of formulating the legal claim prior to the dismissal is "attributable solely to the employer".
For this reason, the sentence indicates that in this temporary context, it operates as an indication "of the
violation of the guarantee of indemnity
", which obliges the employer to prove that the dismissal has been unrelated to the violation of the fundamental right included in article 24 of the Constitution.
"The contrary thesis would encourage
the employer to immediately dismiss the worker
before any internal claim
within the company,
before he or she could exercise the legal claim, in order to avoid the declaration of nullity of the dismissal." argues the high court.
The sentence, which was announced on November 16 but which is published this Wednesday in its entirety, meets the demand of a worker from the
Valladolid company Miva 2011
, in which he had a
temporary three-month contract
(from 25 from May 2020 to August 24, 2020) full-time and a
40-hour work week,
from 8:00 a.m. to 4:00 p.m., Monday through Friday.
Instead, the employee, at the employer's request,
went to the workplace at 7:30 in the morning
(half an hour before their working hours), in order to be transferred to the
site
where they had been working,
without receive overtime.
For this reason, on June 26, 2020, she sent the employer via WhatsApp the list of overtime hours to receive financial compensation for her and on June 29, she expressed her disagreement that he did not figure and pay the excess hours, receiving the
dismissal letter the
next day,
June 30, 2020
.
In said letter, the company assured that the dismissal was due to the
commission of a "very serious" offense
and referred specifically to a "voluntary low performance of their obligations", which was causing "serious prejudice" to the company.
The Supreme Court understands that the
dismissal
, just the day after the claim made by the worker,
does not respond to a real cause,
since
no indication is provided in this regard.
In addition, it adds that it was a three-month employment contract and when the employee expressed his claim, he was immediately fired without waiting for the "short term" that remained until the end of the temporary contract, one month and 24 days, to elapse.
According to the criteria of The Trust Project
Know more
Justice
Companies
supreme court