Claim for invalid dismissal and additional compensation for violation of fundamental rights
We inform you of a recent judgment of the Social Court No. 25 of Madrid, in a matter handled by the Department of Labor Law, for which we do not yet know if an appeal has been announced against the itself, which resolves on the claim of a worker who she understood had been the object of null dismissal, after the termination of her contract once she returned to work, after maternity leave, plus annual vacations together with the so-called maternity leave after the birth of the child. As general information, note that we are in a transitory period, during the years 2019 and 2020, for the gradual application of the new regulation of the suspension of the employment contract due to birth, adoption, custody for the purposes of adoption and foster care, provided for in the sections 4, 5 and 6 of article 48 of the Consolidated Text of the Law on the Statute of Workers, in the wording given by Royal Decree-Law 6/2019, of March 1, on urgent measures to guarantee equal treatment and opportunities between women and men in employment and occupation.
(As is known, it will be from January 1, 2021, when each parent, adopter, guardian or foster parent will enjoy the same period of suspension of sixteen weeks. During this year In the case of birth, the biological mother, like the mother in the case, fully enjoyed the periods of suspension of sixteen weeks, both the mandatory, uninterrupted six weeks that must be enjoyed full-time immediately after childbirth and the remaining ten that could have been enjoyed full or part time)
Well, this worker, from a sector as punished as the hotel industry, after enjoying all the statutory permits and vacations, plus her own maternity leave (and some periods during the pregnancy on medical leave), he states upon joining that he does not see himself capable of carrying out his work with the dedication that the situation requires (the company is with a force majeure ERTE and part of the workforce with the contract suspended) to the time dealing with clients scares him in case it could affect the baby’s situation.
Faced with this supervening circumstance, the company articulates a dismissal, and as happens in these cases, and it is frequent, and here comes the notice for sailors, it formalizes with the worker, after having taken the documents to his house and consult the employee, an agreement of acknowledgment of inappropriateness to avoid the prosecution of the matter, with payment of the compensation in the conciliation act to be held before the SMAC tied to the acknowledgment of improperly agreed privately.
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Surprisingly, the worker, later advised by another lawyer, recoils from the agreement and files a claim for null dismissal for violation of fundamental rights (discrimination based on sex) and claims as additional compensation for damages (moral, patrimonial and psychological damages) the not inconsiderable sum of 95,000 euros (the plaintiff’s annual salary is 15,120 euros).
The defendant company opposes the lawsuit filed by the worker alleging the lack of action, while the company and the worker had agreed that the dismissal would be unfair, being signed by both parties the agreement and not being fulfilled by the plaintiff. In said transactional agreement, as we have commented, the company recognized the unfairness of the dismissal by offering the worker compensation in the legal amount.
What the court decides
For its part, the Social Court No. 25 of Madrid resolves on the lack of action shown by the defendant and explains that the parties have a valid contract that meets the requirements of the Civil Code and that obliges both parties to comply with it, preventing the plaintiff from going to legal proceedings for violation of Fundamental Rights when it was she who requested her leave from the company for a personal reason and the company has not placed any impediment in this regard, even agreeing that the dismissal would be recognized as unfair.
For all these reasons, the Judgment announces that the action cannot be brought since it would be a clear abuse of rights by the plaintiff, who, in turn, requests compensation “ clearly exorbitant and deserving of reproach for evidencing bad faith and recklessness”. That compensation, in terms of proof of damage, was non-existent, which abounds in the conviction of the judge, As the Courts point out, it cannot be estimated, without more, that any injury to a fundamental right, even when it is linked to sex , generates a loss of confidence and self-esteem, since this would suppose an exclusive consideration of these concepts as abstract and generic when, in reality, it deals with specific issues in people, such as their intelligence, or their memory, their aptitudes and abilities, the personality traits, elements that can be altered by various circumstances. Precisely, one of these alterations is the one that the plaintiff alleges as non-material damage, without any proof of its reality and veracity, remaining, therefore, as a simple allegation and subjective estimate and, as such, not objectively verified.
As stated in the aforementioned Judgment, the procedure for violation of fundamental rights is for those cases in which an attack on them actually occurs, but we are not dealing with a case Thus, there is a clear abuse of rights by the worker and an attitude against her own actions.
For all these reasons, the claim filed by the worker is dismissed and a fine of €400 is imposed for bad faith and recklessness.
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30/11/2020
