Ruling number 356/2022 of 20 April of the plenary session of the Social Chamber of the Supreme Court clarifies the requirements that courts have to take into account when determining decisions in workers' claims for infringement of fundamental rights.
Alfredo Aspra, a labour lawyer, says: "It is a ruling of the utmost interest. Because it complements those handed down recently by this same Chamber. That of 22 February 2022 [Rcud. 4322/2019] and that of 9 March of the same year [Rcud. 2269/2019]".
It also adds: "Both establish that any compensation for non-pecuniary damages linked to the infringement of fundamental rights must be prudentially assessed by the judicial body, without prejudice to the margin of discretion that corresponds to it. The recourse, in this type of request, to applications based on the sanctions of the Law on Infringements and Sanctions in the Social Order [LISOS], must be accompanied by an assessment/accreditation of the circumstances of the specific case".
The case: Disciplinary dismissal of a sales manager
The case of a disciplinary dismissal of the head of sales of Halcón Viajes SAU in Pontevedra is the origin of the ruling of the ten judges who make up the Social Chamber of the Supreme Court -María Luisa Segoviano, as chair, Rosa María Virolés, Antonio V. Sempere, Ángel Blasco, rapporteur, Sebastián Moralo, María Luz García Paredes, Concepción Ureste, Juan Molins García-Atance, Ricardo Bodas and Ignacio García-Perrote.
This case was declared inadmissible at first instance and on appeal it has been declared null and void, equivalent to an appeal in civil or criminal law.
The worker, however, appealed in cassation for the unification of doctrine before the Supreme Court after the Social Chamber of the Tribunal de Xustiza de Galicia did not intervene on his request for compensation for violation of fundamental rights, for which he was seeking 150,000 euros in compensation.
The judges of the Labour Division had to decide, first, whether there had been a breach of the employee's right to effective judicial protection, in its aspect of the guarantee of indemnity, which protects the employee against abuses by the company when claiming against it.
Secondly, if the dismissal is considered null and void for violation of this fundamental right, the judgment must include compensation for non-pecuniary damages, together with the usual requirements of reinstatement and payment of lost wages.
The Labour Court finally concluded that yes, he is entitled to his claim. The decision was unanimous with an award of 60,000 euros.
"In this regard, the Chamber, taking into account the duration of the relationship between the parties (around 18 years), as well as the other circumstances of the case, especially the fact that the worker was in a situation of Temporary Incapacity whose origin was related to the aspects that ultimately gave rise to the violation of his fundamental right, considers the amount of 60,000 euros to be appropriate, which represents around two years of his salary and is within the average range of the penalties referred to in the current text of the LISOS", says the court's ruling.
Criteria to be taken into account
The Plenary of the Social Division of the Supreme Court, after its error, recognises that the "recourse to the use of the elements offered by the quantification of the Law on Infringements and Penalties in the Social Order [LISOS] is not in itself sufficient to fulfil with relative precision the dual function of compensating the damage and of serving as a deterrent to prevent future infringements of the fundamental right".
This is due to the fact that the range of the quantification of penalties in the LISOS for the same type of offence (minor, serious, very serious) turns out to be very wide.
The sanction for the commission of a very serious offence, at present, in labour matters can have a value of between 7,501 euros and 225,018 euros, according to article 40 of the LISOS, and at the time of the events, the range of these sanctions was between 6,251 euros and 187,515 euros.
For this reason, "recourse to the sanctions of the LISOS must be accompanied by an assessment of the circumstances of the specific case".
"Aspects such as the seniority of the worker in the company, the persistence over time of the infringement of the fundamental right, the intensity of the infringement of the right, the consequences caused in the personal or social situation of the worker or of the holder of the infringed right, the possible recidivism in infringing conduct, the multifaceted nature of the infringement, the context in which the conduct may have occurred or an attitude tending to impede the defence and protection of the infringed right, among others, which may be assessed, taking into account, among others, the pluriofensive nature of the injury, the context in which the conduct may have occurred or an attitude tending to impede the defence and protection of the transgressed right, among others, which may be assessed, given the circumstances of each case, must constitute elements to be taken into account in order to quantify the compensation", the judges specify.Source: confilegal.com
