Employees affected by an ERE with an agreement can appeal their dismissal

A recent ruling deviates from the criteria followed until now by the Supreme Court and declares the inadmissibility of two dismissals in a company

Employees affected by a collective dismissal concluded with an agreement do not have to bear its consequences. Disgruntled workers can go to court to challenge the termination if they believe it was unfair. This is established by a recent ruling by the Social Chamber of the Superior Court of Justice (TSJ) of the Balearic Islands, in which it agrees with two workers from a sports center who took their former company to trial. As the court concludes, the company did not have the right to fire them because the closure situation was caused by itself by failing to comply with urban planning regulations, which paralyzed a large part of the gym's activities.

The ruling turns 180 degrees on the criterion followed until now by the Supreme Court, according to which, if there is an agreement between employers and workers, it is presumed that the cause for dismissal is valid. Consequently, they can no longer claim individually. However, for the Balearic court, this interpretation is contrary to ILO Convention number 158 ratified by Spain in 1985. The judicial remedy cannot be limited in these cases, affirms the Chamber, “to the existence of fraud, fraud, coercion or abuse of rights” in the negotiation.

The solution granted, recalls the court, is imposed by article 96 of the Constitution, which urges any magistrate to preferably apply these agreements to the detriment of Spanish law or its jurisprudential interpretation in case of conflict.

Illegal works

According to the report of the proven facts of the ruling, the company initiated the ERE (which affected 73 workers) on May 30, 2018. The cause that motivated it was a resolution from the Palma City Council that forced them to close various surfaces. and to paralyze activities in the gym for not complying with the conditions of the license. The situation led to the closure of the business.

Negotiations with the representatives elected by the workers took place in the month of June, ending with an agreement by which terminated employees were compensated with 25 days per year worked. The Labor Inspection denounced bad faith on the part of the employer and fraud of law, but the company was acquitted.

Two of the affected workers then decided to appeal their dismissal, which they considered unjustified. However, the first ruling, from the social court, rejected the claim. In summary, the judge affirms that they could not question the cause of the dismissal once it had been signed with the agreement of the legal representatives of the workers. Allowing individual lawsuits in these circumstances, he explains, would lead to “enormous legal uncertainty.”

However, the employees appealed the court's resolution, getting the Balearic Supreme Court to finally agree with them and compensate them for unfair dismissal, that is, with 33 days per year worked and not 25.

Judicial protection

The right of those affected by an ERE to go to the judges to challenge their situation is, according to the Balearic court, a requirement of judicial protection that is specifically guaranteed by ILO Convention number 158.

In this sense, the magistrates reject the criterion followed in a 2018 ruling by the Supreme Court regarding those files that end with an agreement between the parties. The fact that the workers' representatives have admitted the cause that justifies the dismissal does not mean that it exists, argue the Balearic judges. This is a presumption that must be rebuttable in court.

That is, as they argue, after an agreed collective dismissal, individual lawsuits cannot be limited to cases of bad faith in the negotiation. It is true, they acknowledge, that the final agreement has a reinforced value (as long as it has been agreed upon), but not absolute, so it can be reviewed in court.

In the specific case, the magistrates argue, the company did not have a justified reason to initiate the ERE. The closure of the facilities and the stoppage of activities occurred due to illegal actions by the company, not due to a cause beyond its control. “Both in cases of force majeure and in cases of economic, technical, organizational or production causes, the origin of the extinguishing measure requires that we find ourselves faced with circumstances independent of the will of the employer,” they state.

For this reason, the court concludes that the dismissal of the workers is unfair, and orders the company to reinstate them or pay them the difference with respect to the compensation that actually corresponds to them.