The Social Chamber of the Supreme Court determined that the employer must offer the worker the possibility of defending himself against the accusations brought against himbefore adopting the termination of the employment contract due to disciplinary dismissal.
This decision, which was adopted in plenary session of the Chamber unanimouslyis based on the need to directly apply article 7 of Convention 158 of the International Labor Organization, in force in Spain since 1986.
The Supreme Court modified his own doctrinecreated in the 1980s, which is justified by “the changes that have occurred in our system during all this time” (international treaties, constitutional doctrine, qualification of dismissal, inapplicability of the most favorable standard at the global level).
“A worker’s employment should not be terminated for reasons relating to his conduct or performance until he has had an opportunity to defend himself against the charges against him, unless the employer cannot reasonably be required to grant him this possibility, as provided for by law. ILO Convention”, explains the judgment, of which Judge María Luz García Paredes was the rapporteur.
According to the new criterion, the fact that the Spanish legal system has measures aimed at preventing the worker from finding himself in a situation of helplessness in the face of the dismissal already adopted, given that he can appeal, “does not mean that ‘they cover other requirements imposed by the international standards which also compose it’.
The Chamber explains that the prior hearing of the worker constitutes a “fairness criterion”allowing the worker to allege what is appropriate in relation to facts that deserve to be sanctioned and to do so before the person who has disciplinary power and before he or she adopts the measure.
This “is nothing other than respect for a essential right to be heard or defended which, within the framework of the employment relationship and during its validity, presents itself as a formal act within the framework of the legitimate exercise of the disciplinary power which the company holds”, he adds.
This is a “required requirement” by an international standard incorporated into our internal regulations, therefore “it must be applied without implying that
we repeal any internal standard but instead select the correct one
in force”.
For future cases
The Chamber determines that the exception relating to the fact that the hearing will not be required “if the employer cannot reasonably be asked to grant this possibility” is applicable to the case of disciplinary dismissal which gave rise to the rectification of the doctrine, a worker from a drama school in the Balearic Islands.
“We could not reasonably ask the employer to grant such a hearing to the worker” given that “our own case law had expressly held the opposite” in a peaceful manner, he argues.
This exception is “undoubtedly valid for dismissals occurring before the publication of this judgment”, specifies the High Court, the new doctrine will therefore only apply to disciplinary dismissals which now occur.
