Underperformance clause in contracts: The Audiencia Nacional annuls it

In a ruling on 13 October, the national court annulled a contract settlement clause for teleoperators. The Chamber announced that a distinction must be made between termination for breach of a minimum benefit agreement and termination for continued and voluntary decline in performance.

In addition to being a non-negotiable clause imposed by the company in the text of the employment contract - so that if the worker does not accept it, it is equivalent to not signing the employment contract - the chamber of commerce puts special emphasis on the fact that it is inserted in jobs where employees are not highly educated, where the worker is not well trained to find a job and chances of finding an occupation are lower and freedom is more limited for workers.

Collective Bargaining

In terms of collective bargaining by job classification, tele-operator positions are at the lowest salary level in their job group and, moreover, their functions are strongly recorded by the company, which allows a clause to establish performance under a comparative parameter: 75% of the average monthly production achieved by the workers of the service to which they are attached - is immediately considered cause for termination of the contract, regardless of any subjective or objective element that has influenced this lack of performance.

Moreover, the introduction of this contractual clause implies mass individual negotiation of working conditions, which violates the right to collective bargaining because it implies, once again, circumventing the necessary voluntary nature, that underperformance should be considered grounds for dismissal as well as circumventing those imposed by the mandatory law on disciplinary dismissal.

Judicial Contradiction

The contradictory provision contradicts the doctrine that has been established by the SC on the termination of the employment contract for breach of the minimum service contract provided in the contract and that, regardless of other circumstances such as gravity, voluntariness and continuity, the existence of this type of termination clauses necessarily requires the existence of a comparative element to reach the conclusion of bad performance, and it is precisely in this case not available.

Finally, the clause in question violates Article 3.1 c) of the E.T, which establishes the will of the parties among the sources of the employment contract, forgetting that less favourable conditions or conditions contrary to legal provisions and collective agreements are not established to their detriment. of the worker and in this matter the worker is the worker may be deprived of the guarantees that both legislation and the collective agreement grant him to face disciplinary dismissal for poor performance.
At Confijulab we can advise you on the work environment so that you know your rights and the conditions to which you are entitled.

Source: Legal News

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