A recent ruling by Court No. 3 of Sabadell declared them null and void, but several rulings by higher courts, including the Supreme Court, refuse to accept dismissals for fraud of law as null and void, opting to declare them unfair.
On July 6, Court No. 3 of Sabadell issued an important ruling in which it declared the dismissals linked to Covid null and void. The judge referred to one of the royal decrees published during the lockdown, 9/2020, which prohibits dismissals for economic, technical, organizational and productive reasons (ETOP) that have been caused by the pandemic. Although the law says nothing about whether these dismissals should be considered null or unfair, the court opts for the first option.
However, as some labour lawyers point out, this is an interpretation that will have little impact in higher courts. "It is most likely that the High Court of Justice (TSJ) of Catalonia will revoke the ruling and declare the dismissal unfair," predicts Pere Vidal, a lawyer at Augusta Abogados.
This is due to the argument made by the court, which relies on article 6.3 and 6.4 of the Civil Code to declare the termination void. These precepts determine that all acts contrary to mandatory and prohibitive rules will be considered executed in fraud of law "and are null and void, unless a different effect is established in them." The judge understands that, since there is a regulation that expressly prevents dismissal due to covid, the terminations that occur for this reason are understood as fraud of law and, consequently, can only be null.
This reasoning has already been put forward on other occasions by first instance judges, and has not had much success among the higher courts. In fact, Vidal points out that the Catalan TSJ itself has a consolidated criterion in this regard, and has already issued several rulings in which it refuses to accept dismissals for fraud of law as null, opting to declare them unfair. An approach that, the lawyer adds, "has also been adopted by the Supreme Court."
The difference between the two qualifications is quite significant, since nullity forces the employer to reinstate the worker, also paying him the wages owed during the time he was dismissed. Inadmissibility, on the other hand, offers the company the choice between reinstatement or compensation equivalent to 33 days' salary per year worked.
Causes assessed
One of the main reasons that judges have relied on to rule out the invalidity of dismissals of this type is that the causes are very limited. Álvaro San Martín, a lawyer at Bufete Casadeley, points out that the Workers' Statute (ET) only allows the invalidation of dismissal to be decreed "when it violates a fundamental right of the worker", such as the right to family conciliation, non-discrimination, etc.
In this regard, in July of last year, the same Catalan High Court published a ruling in 2017 in which it ruled out annulling the expulsion of a worker, considering that only the reasons listed in the ET could be accepted, while the rest of the causes could not be covered under the umbrella of nullity.
Covid, San Martín stresses, does not fall within these assumptions, so it would hardly fit into this context.
Source: Five Days-El País
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