Dismissal during medical leave is void dismissal

Once again, the Court of Justice of the EU once again exposes Spanish labor legislation.

The Social Court number 33 of Barcelona has declared void a dismissal that occurred during the temporary disability of a worker (medical leave) following the resolution of the Court of Justice of the European Union.

In this way, and as already happened with the case of the interim workers, the European courts have once again highlighted Spanish labor legislation, in a case that was unprecedented since, if it were not for Europe's intervention, said dismissal would have been inadmissible instead of void.

DIFFERENCES BETWEEN UNFAIR AND VOID DISMISSAL

Labor Lawyers point out that the inadmissibility of a dismissal and null dismissal are radically different. When the judicial body declares a dismissal inadmissible, it does so alleging that there was no reason to carry it out, or that the termination decision lacks the minimum requirements required by law. In contrast to this, the declaration of nullity arises, which is based on the fact that the The dismissal was carried out in violation of fundamental rights and public freedoms, which our constitution protects.

So, and what is most relevant, are the consequences of such a statement. In this sense, if the dismissal is declared inadmissible, or unfair dismissal, the company must choose to reinstate the worker or compensate him in the amount corresponding to the unfair dismissal. However, if the dismissal is declared void, the company cannot choose, so it must reinstate the worker in his or her job and pay him the processing wages. And these are nothing more than those lost from the date of dismissal until the date on which the sentence is notified. For this reason, processing salaries are usually much higher than any compensation.

Having seen the above, and starting to analyze the ruling of the Social Court No. 33 of Barcelona, dated December 23, 2016, in which the dismissal of an injured chef from a well-known hotel is prosecuted. The origin of everything was the work accident suffered by the aforementioned worker, when he slipped, fell and fractured several bones during his work day. After several weeks in a situation of temporary disability, the company notifies the worker of his disciplinary dismissal, alleging “not having met the expectations established by the company or the performance that the company considers adequate or suitable for the performance of his tasks in his job. ”.

A SENTENCE THAT MARKS PRECEDENTS

Well, the novelty is that this ruling considers that the fact of dismissing the worker in a situation of temporary disability (medical leave) is not inadmissible, but null. For this reason, the worker must be reinstated in the company, with identical working conditions and payment of the processing salaries if the dismissal is considered null and void. This ruling, despite having been handed down by a Court of First Instance, sets a precedent in that the preliminary rulings issued by the European Court of Justice have largely been decisive in obtaining this ruling.

It is necessary to take into account that the first instance judge reaches the conclusion that there is nullity (dismissal carried out in violation of constitutional rights; in this case the right to physical integrity and health), while the worker is discriminated against due to his condition. "disabled", a concept that the Court of Justice of the European Union has already qualified as a worker in a situation of temporary disability who has a lasting nature of his disability on the date of dismissal. This is precisely the concept that the aforementioned Court uses as disability for the purposes of classifying the dismissal as discriminatory, and which, on the other hand, is already included in European Directive 2000/78, C335/11 and C-337.

For this reason, dismissals carried out on workers in a situation of temporary disability, which are expected to last over time, and who may be considered disabled, already have much greater protection against dismissal than the current Spanish jurisprudential doctrine provided. guaranteeing, in which the dismissal was only considered inadmissible if it was proven that the real reason for it was the situation of illness.