When faced with a dismissal procedure for objective reasons, it is very common to make errors, both in the consultation period (collective dismissals) or at the time of communicating the decision to the worker (individual dismissal), which can lead to inadmissibility, and this, despite the existence of causes that justify the objective dismissal.
Dismissal for objective reasons must be perfectly argued and justified, and for this the company has to analyze if there is economic, technical, organizational or production cause and that it has a sufficient entity to adopt such a decision.n. And that is not enough, because it is also essential comply with the legally established procedure in order to avoid the risk of the dismissal being declared null and void, regardless of the existence or not of the cause.
One of the formalities, regulated by article 53.1.b) of the ET, is to make available to the worker, simultaneously Upon delivery of the written communication, compensation for objective dismissal. Literally, it states the following:
“b) Make available to the worker, simultaneously with the delivery of the written communication, the compensation of twenty days per year of service, prorating by month the periods of time less than one year and with a maximum of twelve monthly payments.
When the termination decision is based on article 52.c), with an allegation of economic cause, and as a consequence of such economic situation, the compensation referred to in the previous paragraph could not be made available to the worker, the employer, stating in written communication, may stop doing so, without prejudice to the right of the worker to demand payment from him when the termination decision becomes effective.”
Regarding this precept, we analyze a ruling of the Supreme Court, dated July 22, 2015, which admits the validity of an agreement reached during the consultation period, agreeing to the payment of compensation on a deferred basis.
In this ruling, the case of a company that notified the workers' representation of the opening of the consultation period for the termination of 119 contracts is analyzed, as a consequence of the concurrence of productive causes. After carrying out the consultation period, it is agreed that certain amounts will be paid the following year, due to lack of liquidity in the company.
The company communicates the dismissal in writing to each worker, but The letter does not expressly mention the lack of liquidity which explained the reason for the postponement of compensation, although it did refer the workers to the collective agreement. For this reason, twelve workers are dissatisfied with this provision and considered that their dismissals should be declared unfair, for failing to comply with the provisions of article 53.1.b) ET.
In the legal foundations of the ruling, the TS concludes that the requirement to simultaneously communicate the termination with the provision of the minimum legal compensation is not necessary by law, but rather allows exceptions for economic reasons, such as lack of liquidity. to meet all payments required at that time, under penalty of jeopardizing the viability of the company, which is what the rule tries to avoid, without prejudice to the right of the worker to claim payment of what is owed to him.
Regarding the problem of whether in collective bargaining, prior to a collective dismissal for economic reasons, a split, or postponement, of the payment of compensation owed for agreed contractual terminations can be agreed upon, there must be a positive response, for how much, although the minimum amount of compensation established by law cannot be lowered because it is a legal minimum, Yes, your payment can be divided into installments, provided that the agreed deferral is not disproportionate.
For all these reasons, the ruling admits the validity of agreements on postponement of compensation payments in collective dismissals, unless they are abusive. It is recalled in the ruling itself that this same Chamber already ruled in its ruling of June 2, 2014 (Rcud. 2534/2013), where it was pointed out that we were not dealing with a right of a necessary nature and that in collective bargaining The postponement of the payment of compensation could be agreed, a collective agreement with similar effectiveness to what was agreed in the collective agreement.
If you are in this situation, and you want any clarification about the requirements or steps to follow in an objective dismissal procedure, you only have to consult with our labor experts. Contact us and we will inform you.
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