20.10.2020
Is the dismissal of a worker on medical leave void?
We will not make this a doctrinal article because there are dozens of articles published since the aforementioned ruling was issued. We will make this a practical article, analyzing the proven facts of the sentence, in order to contextualize the ruling to the specific case. Let’s remember that the Court ruled that NOT every dismissal of a worker on medical leave deserves the legal qualification of nullity.
Por
González Varadé, Patricia Judgment of the Social Court Nº 33 of Barcelona
On December 23, 2016, the Social Court No. 33 of Barcelona issued a ruling fully granting the lawsuit filed by the employee. Therefore, declared the dismissal that had been notified to him on 26.11.2014. The Court considered that there was discrimination on the grounds of disability and that other fundamental rights had been violated.
The employee was on medical leave at the time the dismissal was communicated, condemning the company to immediate readmission. In addition, it obliged the company to make reasonable adjustments to his job and to pay the processing salaries accrued from the date of dismissal until readmission. It also required the payment of compensation for moral damages and material damages.
Medical leave situation
There are several articles that have been written on the occasion of the ruling of the aforementioned sentence, which in my opinion are excessively alarmist. A priori, it could be understood, as has been sold, that it “disassociates” itself from the consolidated and unanimous position that to that date the Supreme Court had maintained in matters of disease.
Although read carefully, we observe how the Judgment reasoned and exhaustively argued the elements and/or circumstances involved in the case under trial. In this sense, the Court of Appeals concludes that in this specific case, and not in general in the case of any dismissal of a worker on medical leave, fundamental rights have been violated, which means that the dismissal must be deemed null and void.
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What has been the criteria of the Supreme Court in matters of illness?
It is true that the Supreme Court has systematically understood that the disease is not a discriminatory factor in the strict sense that this term has in the final paragraph of Article 14 of the Spanish Constitution. Although it could be in other circumstances where the element of segregation is appreciable. All this understood, in a generic sense and from a strictly functional perspective of inability to work, which makes it unprofitable for the company to maintain the worker’s employment contract. And there it is, the key that opens the door to the ruling in the aforementioned sentence, right in that last paragraph highlighted in bold.
Proven facts according the sentence
Carefully read, the Sentence states with proven factual value that the worker:
- Initially is hired part-time (20 hours) and with a temporary contract of three months to provide services as a kitchen assistant.
- He exceeds the 30-day trial period, and agrees to convert the contract to full-time (40 hours).
- Two weeks later, the contract is extended for nine more months.
- Therefore, the maximum year of duration is completed and the termination date is set at 16.04.2015.
Temporary landmarks
On 13.10.2014, the worker suffers an occupational accident when he slips in the kitchen and dislocates his elbow and begins the corresponding process of temporary disability. Two weeks after this process begins, his boss calls him by phone to inquire about his medical condition and the duration of his medical leave. The worker answers that, according to the doctor’s prescription, his return to work could not be immediate.
On November 26, 2014, while still on medical leave, the worker received a written communication of disciplinary dismissal. The worker is thus informed that he does not meet the expectations established by the company, nor the performance that the company considers adequate or suitable for the performance of his tasks in his job. At no point do they specify, even minimally, what the alleged problems or dysfunctions in the employee’s work are. Nor are they accredited in the act of judgment. This is despite the fact that they have been able to make subsequent statements in the form of evidence in order to make a better decision.
Inconsistencies with the professional conceptualization of the worker
And so, reasons the Court of First Instance. The general nature of the breaches of duty alleged in the dismissal letter, together with the fact that they have not been accredited in court, are incongruent with the good professional reputation of the worker. Up to the date of the dismissal, the worker had been employed by the Company, since it should not be forgotten that he had satisfactorily completed the trial period, had signed a conversion of the part-time contract into a full-time contract and a renewal until the maximum period of 1 year had been completed, all at the proposal or with the consent of the Head of the Kitchen himself.
In other words, the Court’s reasoning involves bringing up the so-called reversal of the burden of proof, transferring to the defendant the burden of proving that there has been no violation of the principle of equal treatment in its decision to dismiss the worker on medical leave due to an accident at work, under the circumstances described in the preceding paragraph.
At this point we can conclude that the above-mentioned ruling does not conclude that the dismissal of a worker on medical leave is null and void in any case, but rather that it begins to evaluate whether in the case of a worker with a good professional reputation, who sees his contractual conditions renewed and improved, who suffers an accident at work, who begins a process of temporary incapacity of uncertain duration, he is the object of a “non-cause” dismissal when the company is aware that his reincorporation will not take place immediately.
The truth is that the legal basis of the judgment is conclusive, and it reasons, to the understanding of the subscriber, the reasons for which they understand that there is a violation of fundamental rights in the case under trial, which, although innovative, are consistent in an attempt to neutralize those dismissals in which there is no cause for termination of the employment contract. Given the significance that it could have, we will follow very closely what the Social Chamber of the Superior Court of Justice of Catalonia will decide.
If this article has been of interest, we also suggest you to read the following article published on our website: Dismissal Null, Dismissal Unfair and Dismissal Proceeding: Differences
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