May 2022. The largest residence in the Canary Islands, the Fundación Hogar Santa Rita in Puerto de la Cruz (Tenerife), is going through a period of turbulence. Workers call a press conference to demand the resignation of the general manager. In April, a new outbreak of Covid-19 was detected in the center. Earlier that year, a court opened proceedings, following a complaint from the prosecution, into an alleged case of mistreatment of its users during the pandemic. In January 2021, the center had to be subject to intervention by the Ministry of Health due to a coronavirus outbreak which affected more than 250 people, including residents and staff, and caused the death of ‘around twenty people. The medical team at La Candelaria Hospital that handled this crisis detected an outbreak of scabies and signs of malnutrition and dehydration among its users.
In this context, an anonymous letter reached the hands of the works council. “Behind these lines, we are a group of workers in an attitude of cowardice and helplessness because, logically, we are not able to openly express our feelings. The fear of losing your job is the worst thing that can happen to a parent, because that is where the most important thing lies: dignity as a human being. It’s time to hold on, shut up and look away. “To defend with an absurd smile a reality that we consider unjust.” Thus begins a letter which contains severe accusations against the members of the board of directors of the foundation, against the directors of the residence, whom it accuses of criminal acts.
The works council as a whole (made up of members of CCOO, UGT and Intersindical Canaria) decided to make public this letter which was circulating through different media. The president and secretary of this committee at the time, Jesús Suárez and Natalia Aparicio, posted it on the bulletin board, where it remained posted for less than an hour. The letter was withdrawn at the request of one of the workers mentioned.
The center’s security cameras filmed the works council president and secretary placing the letter on the board. Following these images, management opened a disciplinary case against them which resulted in dismissal for “very serious” misconduct. Concretely, for “the commission and the necessary and direct participation in the dissemination of a writing or pamphlet, anonymous without signature, by placing it on the notice board for the exclusive use of the works council with highly defamatory, humiliating, insulting, insulting remarks, a real inflammatory defamation” against the president of the foundation and the general director.
The dismissals which took place in July 2022, two months after the events, were canceled by the courts. At first instance, Social Court number 4 of Santa Cruz de Tenerife had already ruled in favor of the plaintiffs, finding that the foundation had violated the guarantee of workers’ freedom of association.
In this judgment, the magistrate rejected the validity of the images recorded by security cameras for “a direct attack on freedom of association”. The resolution recalls that the installation of video cameras in the working environment is justified for security reasons (“control of illegal acts attributable to employees, customers and third parties, as well as rapid detection of accidents”), but that they cannot be used for “other types of control unrelated to safety”, such as “work efficiency, absences from the workplace, conversations between colleagues, etc. »
This first judgment concluded that the defendant entity had not proven that the real reason for the dismissal was “unrelated to the union actions” of Jesús Suárez and Natalia Aparicio as president and secretary of the works council. In addition to ordering the entity to reinstate them and pay them treatment compensation, the judge set compensation of 20,000 euros for each of them for “the harm caused” of a moral nature. An amount that was considered adjusted by qualifying the entity’s infraction as “very serious” and taking into account the duration of the employment relationship (the workers had 18 and 15 years of seniority) and the salary that perceived by each of the plaintiffs.
The foundation appealed the decision to the Superior Court of Justice of the Canary Islands (TSJC), arguing that the exercise of freedom of association “cannot simply justify the use of expressions or names that are insulting, slanderous or vexatious which go beyond the right to criticism”. which is why they understood that the dismissal had to be qualified as appropriate.
The Social Chamber of the Superior Court of the Canary Islands rejected this request due to an “insurmountable lack of justification” in the appeal presented by the foundation, because it qualified as “the only jurisprudence violated” a judgment of a higher court of justice , which is insufficient for this purpose. However, the TSJC considered the compensation set in the first judgment too high and reduced it to 500 euros for each.
The magistrates describe the exercise of freedom of expression by workers as “excessive and secretive” and therefore argue that it is “difficult to protect within the framework of the right to representative action of members of the works council “.
This latest judgment confirming the annulment of the disciplinary dismissal of the two workers dates from June of this year. Although an appeal could be made to the Supreme Court, neither party did so, so the judgment became final and, in fact, the plaintiffs have already returned to their residence located in Puerto de la Cruz.
“A retaliation”
Jesús Suárez explains that when he received this anonymous letter, he decided to bring it to the attention of the works council “because of its seriousness” and that he received the consent of all its representatives to place it to the board of directors, as noted in the story. proven facts sentences. The worker considers that the dismissal was “retaliation” for the criticism he had expressed in various media on the management of the pandemic in the residence and for the manager’s request for resignation.
“I only did my job as president of the works council,” emphasizes Suárez, who emphasizes that his intention was not to “harm” the entity. The worker points out that it was he himself who removed the writing from the board at the request of one of the aforementioned people. Indeed, during the legal proceedings he requested full camera recording so that this could be verified. According to him, the entity “did not present it”.
At the trial, one of the witnesses, a member of the board of directors of the foundation, admitted that this letter had also arrived at his home by regular mail, for which reason Suárez rejects any accusation regarding the authorship of the letter.
Among the proven facts of the conviction, we can cite the fact that, years before the opening of the disciplinary file and his subsequent dismissal, the president of the works council at the time, of the CCOO union, had requested information on the residence’s security cameras. The foundation responded that their exclusive objective was “monitoring and control of work activity, as well as security” within the company and that the cameras installed had existed “for a long time”, although it is true that they had been added and others had been replaced due to deterioration of the originals.
The Hogar Santa Rita Catholic Foundation is the largest retirement home in the Canary Islands. The center has a capacity of 710 places, accommodates just over 500 residents, with a significant number of places arranged with the public administration, and employs more than 400 workers. The building is divided into two modules. The first was inaugurated in 1981 by Father Antonio Hernández, now deceased. The second was financed by the sale of “little corners of paradise” which “were acquired each time we contributed to the work”.
The procedure opened before a court in Puerto de la Cruz (Instruction 2) for alleged abuse in the residence was provisionally dismissed in March this year, when the judge understood that there was insufficient evidence of a crime of reckless homicide. The public prosecutor’s office appealed this decision to the Santa Cruz de Tenerife provincial court, which has not yet set a date for deliberation and ruling.
