Newsletter Laboral - March 2024

Bonus - Lack of target setting

Does the failure to set targets in any case entail the payment of 100% of the Variable Remuneration? STS, Social Chamber, of March 5, 2024, Rec. 256/2021 

There are several Supreme Court rulings that reiterate that the lack of clarity in the payment of the bonus and the criteria that give the right to receive it operates in favor of the employees, which entails the payment of the full bonus to them in the event that the objectives have not been set by the employer. See STS 09/07/2013, STS 22/12/2020 or STS 28/06/2022, among others. 

However, the Supreme Court Ruling commented today, clarifies that not always the failure to set such objectives should entail the payment of 100% of the variable, thus providing a relevant nuance that changes the judicial landscape. 

In the case in question, the Collective Bargaining Agreement establishes that the variable bonus only applies in the event of achieving financial and budgetary balance, a balance that has not been achieved, which makes it impossible to collect the bonus despite the failure to set objectives. The Supreme Court determined that the rest of the requirements that condition the right to the right to the payment of the bonus cannot be ignored.

Dismissal – Employee inadequacy

The dismissal by the company on the grounds of the worker's sudden unsuitability, as it was not possible to adapt his job position, was declared fair. STSJ of Galicia, Social Chamber, of December 22, 2023, Rec. 3228/2023

The Company proceeds to dismiss an employee who, after returning from a long term temporary disability, was declared unfit in the medical examination, not being possible to adapt his job position in accordance with the situation presented by the employee due to the illness he had suffered. 

The worker requested the nullity of the dismissal under Law 15/2022, of July 12, 2002, comprehensive for equal treatment and non-discrimination, for having been discriminated against due to his illness. The TSJ of Galicia understands that there is no intention on the part of the company to discriminate against the worker on the basis of the aptitude report issued by the external prevention service, which justifies the company's actions and constitutes a counter-indictment.

The Court qualified the dismissal as fair on the basis of the preparation of a letter of dismissal in a precise manner, with an explanation of the worker's functions and the requirements of the position, in relation to the limitations that, at the time, he was suffering, thereby justifying the impossibility of adapting the job.

Collective bargaining – Applicable Agreement

Should the collective bargaining agreement closest to the company's activity be applied? The Phone House case. STS, Social Chamber, of December 21, 2023, Rec. 2900/2021

The Supreme Court reiterates its case law on the applicable agreement in companies whose activity is not included in the scope of application of a sectoral agreement. 

The contract signed between the company and the worker included the application of the collective bargaining agreement for commerce in Madrid, despite the fact that the worker provided services in the province of Malaga.

The employee claims that the General Trade Collective Bargaining Agreement of Malaga should be applied to her, since this is where she provides her services and this is the activity of the company.

The Supreme Court agreed with the company and declared that the applicable collective bargaining agreement is the collective bargaining agreement for commerce in Madrid.

In this case, the company's activity does not fall within the scope of application of a sectoral agreement - neither the Madrid trade nor the Malaga trade - so there is nothing to prevent the parties from freely agreeing to apply any agreement, even if it is of a different territorial scope.

Digital device policies - RLTP

Must the Company rely on the RLPT in the criteria for the use of digital devices and computer media? STS, Social Chamber, of February 6, 2024, Rec. 263/2022 

The company communicates to the workers new criteria for the use of the computer devices of its property, made available to the workers, as well as the access to Internet and e-mail through them. 

The Unions filed a collective conflict lawsuit requesting the nullity of the communication made since the company had not counted with the participation of the workers' representatives, contrary to the provisions of article 87.3 of the LOPD. 

The company defends the violation of article 20.3 of the ET, indicating that it has not implemented a new policy, but that it was a reminder. It also refers that the literal wording of Article 87.3 LOPD refers to the participation of the workers' representatives only for the elaboration of the policies, not for the subsequent communications. 

The Supreme Court declares the communication null and void and warns that any modification of the criteria or any specification, extension or restriction of the same must have the participation of the workers' representatives.
 

Teleworking – Relocation

Does the company automatically have to accept the employee's change of address? STSJ of Madrid, Social Chamber, of January 12, 2024, Rec. 736/2023

The Court upheld the dismissal of a female worker who, due to the transfer of her residence to Mexico, requested the adaptation of her position in order to be able to work remotely. Although the company denied her request for teleworking, the employee did not physically go to her center located in Madrid, so the company proceeded to her disciplinary dismissal.

The TSJ of Madrid argues that, within the right of the worker to establish her domicile in the place she considers convenient, she seeks recognition of a kind of right to relocation that the company does not have to accept.

This is not the first time that the Courts have ruled in this sense: let us recall the SJS No. 5 of Oviedo of March 29, 2023 in which it was concluded that moving to another province and changing the children's school are unilateral decisions of the worker that do not bind the company to accept the request for teleworking under the right to reconciliation of work and family life.