Labour News

1.>> ERTES can be an abusive employment measure in companies on the verge of bankruptcy. Judgment of the Social Chamber of the National High Court of September 18, 2017, Judicial Decree 187/2017.

After carrying out 3 previous ERTES, a company implemented - without the agreement of the negotiating committee - a collective process of temporary suspension of employment contracts (ERTE), based on productive and economic causes, in the event of loses.  Contested the ERTE, and having declared the bankruptcy, the Social Chamber postulates that the ERTE is null and void, having been carried out in fraud of law and with abuse of rights, since through this temporary measure the continuity of a dead-end road was protected.  Thus, even though the measure of temporary suspension of employment contracts reduced salary costs and avoided the continuous destruction of treasury, the Hearing understands that the situation was structural and not temporary and that, therefore, it was disproportionate for workers to bear it for another year with the employment contract suspended, as such a measure would not solve the decline in sales and the equity debt assumed by the company.

2. >> Is a work shift always considered effective working time? Judgment of the Supreme Court, Social Chamber, of June 18, 2020, Rec. 242/2018.

In 2018, the Court of Justice of the European Union, in case C-518/15 (Matzak), determined that the work shifts were working time when the worker had the obligation to (i) remain at home during the period on duty, (ii) to be available to the company and (iii) to appear at the workplace during the duty period.  Now, the High Court is prosecuting a system of availability shifts implemented to attend to incidents that occur outside of the day and in which the workers had to be located in case their intervention was necessary. Most of the incidents could be solved remotely, without having to go to the center of the company or to that of the clients. Finally, if they had to intervene, the working hours were compensated through the corresponding rest.  The Chamber argued that, since the workers were not obliged to remain in the place assigned by the company nor did they have to resolve the incident within a certain period of time, these shifts are not considered effective working time.

3.>> The generic need to cover permits, licenses and vacations of the staff does not justify the use of temporary hiring. Judgment of the Supreme Court, Social Chamber, of November 10, 2020, Rec. 2323/2018.

Both from the normative and jurisprudential spheres, the current trend is to achieve the restriction or removal of temporary contracts.  The eventual contract for the accumulation of tasks is usually the most frequent contractual modality when it comes to filling in the absences caused by the enjoyment of vacations or leave.  In the case under discussion, the Chamber argues that the usual activity must contemplate the hours of effective provision of services, since the enjoyment of breaks and vacations is a fully foreseeable circumstance by the employer and not exceptional, so it moves away from the circumstance extraordinary that requires recourse to temporality.  Therefore, the use of temporary hiring requires a more precise and exhaustive test of the concrete and specific circumstances of this workforce, the number of jobs and vacancies existing in it.  However, the Chamber recalls that even if the cause of temporality has been insufficiently or inadequately expressed in the contract, the company can prove its existence if it is questioned. 

4.>> The company could claim from the worker the costs that his dismissal has caused when he is declared admissible and his irregular procedure is proven. Sentence of the Superior Court of Justice of Andalusia, of June 18, 2020, Rec. 2379/2019.

A worker who was performing security work on an urban farm is fired for disciplinary reasons and, during a period of temporary disability, carried out an activity on his own account as a party entertainer.  The dismissal was declared appropriate by the Superior Court of Justice when it was understood that the worker was carrying out behaviors that were incompatible with his recovery process. Additionally, the employer requested, through a counterclaim in the same procedure, to be compensated for the costs that the dismissal of the worker caused her.In particular, she claimed (i) the return of the supplement for temporary disability that had to be paid by provision of the applicable collective agreement, (ii) the costs generated to prove the attitude of the worker and (iii) those of communication and defense of the dismissal. Thus, she requested the costs of the lawyer, detective, notary, and sending the burofax with the dismissal letter.  Finally, the Court estimated all the expenses requested by the company with the exception of the costs involved in the IT process since, the resolutions that agreed to the temporary disability process had not been annulled, said benefit cannot de facto be abandoned without economic content.

5. >> Validity of the time control system when it is the worker who declares the daily time worked. Judgment of the National Court, Social Chamber, of December 9, 2020, Rec. 218/2020. 

The validity of the time control system is discussed when it is the worker himself who, through a computer application and, exceptionally, through written sheets, records the hours of work performed daily, without there being a specific control system on the coincidence between the hours recorded and the hours actually worked.  The Hearing concludes that the fact that it is the worker who records the daily time actually worked does not detract from the notes that any objectivity and reliability time control system must comply with. However, the registration system would be invalid when the company, with the intention of evading a true control, provided instructions through guides with tricks or methods that were intended to prevent or hinder the registration of time worked, such as, for example, that the performance of overtime requires prior authorization from the company. Thus, this type of practice could lead to the annulment of the time control system for evidentiary purposes on the time actually worked.  Therefore, the criterion contained in this Judgment is extremely interesting inasmuch as it endorses the time control systems based on the simple statement of the employee, as long as there have not been business orders conditioning the record. 

6. >> The termination of a worker cannot be justified in a declaration of total permanent disability when this has been recognized for a profession that is no longer the one that was developing in the company at the time of termination. Judgment of the Supreme Court, Social Chamber, of September 16, 2020, Rec. 1000/2017. 

Although he began his employment relationship as a commissioned electrician, after a period of leave due to temporary disability, he began to perform the functions of energy and water manager. Five years later, he was recognized as having total permanent disability over the profession of electrician, for which he had been initially hired. Following this statement, the Company informed him of the termination of his employment contract due to his inability to provide services. Despite the fact that the Superior Court of Justice understood that the declaration of total permanent disability affected the profession carried out at the time of the medical leave that gave rise to such declaration, declaring the dismissal appropriate, the Supreme Court reversed the sentence considering that His total permanent disability is not justification for the termination, since the worker had been carrying out an activity that is no longer part of the profession for which the disability had been recognized, so the termination was declared not in accordance with the law.