MADRID, 20 Oct. (EUROPA PRESS) –
The Plenary Session of the Fourth Chamber of the Supreme Court issued a ruling in which it rules out that dismissals without valid cause carried out in a pandemic, where the “prohibition of dismissal” decreed by the Government was in force, can be considered null automatically, has informed this Thursday the High Court.
Through this ruling, the Supreme Court upholds the appeal filed against a judgment of the High Court of Justice of the Basque Country that declared the dismissals null and void on the grounds that they were prohibited and incurred in fraud.
The problem lies in the fact that Royal Decree-Law 9/2020, which was approved shortly after the Covid pandemic was declared and in which it was committed to temporary employment regulation files (ERTE), provided that force majeure and the causes economic, technical, organizational and production (ETOP) in which the measures of suspension of contracts and reduction of working hours were protected could not be understood as justifications for the termination of the employment contract or dismissal.
The ruling of the Supreme Court concludes that firing in ignorance of the provisions of said law should not be classified as null dismissal, unless there is some specific information that justifies it, such as the violation of a fundamental right, the circumvention of the procedural rules on collective dismissal or the concurrence of a subjective circumstance generating special protection.
To this end, the High Court argues that such a decree does not contain “a true prohibition” on dismissal, nor does the consequence of a fraudulent dismissal entail its nullity, unless there is an express regulatory provision. In the same way, he understands that going to the ERTE does not appear as “a true obligation”.
The Supreme also rules out the qualification of the dismissal as null because the provisions on the subject, both in the Workers’ Statute and in the Regulatory Law of the Social Jurisdiction, ignore the assumption of fraud, except in “drip” dismissals, which circumvent the collective dismissal procedure.
For the High Court, when the termination of an employment contract agreed by the company occurs and there is no valid cause, “it must be qualified in accordance with current labor legislation”, both because of the specialty of this sector of the legal system and because of the own reference of article 6.3 of the Civil Code, which qualifies as null acts contrary to mandatory and prohibitive regulations “unless they establish a different effect in the case of contravention”.
This ruling, the content of which will be announced in the coming days, was approved at the last plenary session presided over by María Luisa Segoviano, who is stepping down from her post due to retirement, and Judge Antonio Sempere Navarro was her rapporteur.
