This relevant judgment of the TS illustrates that we live in an era of labor law in which the defense of the “old” must give way to the construction of the “new”, giving the importance and predominance due to international guarantees labor rights.
The Social Chamber of the Supreme Court (TS) has just decided that any worker dismissed for disciplinary reasons has the right to be heard before their dismissal becomes effective. Therefore, the company must give you the opportunity to make allegations against the accusations. This is not a minor thing.
Firstly because it is surprising. The Supreme Court has stated the opposite for almost 40 years (1987), namely that our national law does not provide such a right for every worker, but only in a handful of cases. Secondly, because it represents a shock to the practice followed until now, due to the Copernican turn it represents in the usual way, until today, of managing dismissal decisions by personnel services. It is therefore a decision both expected by workers and feared by companies, knowing that it generates additional obstacles to dismissal and greater uncertainty for management.
So how did this surprising shift in jurisprudence come about? The reason lies in the preferential application to national law of international law, art. 7 of ILO Convention 158, on termination of the employment relationship, which requires this prior procedure, except in – exceptional – cases where it is not “reasonable” to ask the company to wait this preliminary defense.
Although this international standard has been in force in Spain since 1986, the TS has maintained until now that it is not directly applicable by the Spanish courts. The TS explains that he was wrong in the past interpretation and that the correct one is the current one, among other reasons, due to the need to take into account the “changes that have occurred in our system during all this time “. And among these changes, there are not only labor reforms that have weakened the protection of the worker against dismissal without cause (for example, elimination of salary wages, removal of the nullity of dismissal without form, etc.), but also the new vision that we have, after Law 25/2014 of November 27 on international treaties, of the predominance of international standards over national standards. Only 6 years ago (2018), the Constitutional Court authorized ordinary courts to move the domestic standard and preferentially apply the international standard, if they detect a contradiction with the national standard.
We believe that this decision should be evaluated very positively and, in our opinion, it sends a very clear message in other cases pending the Supreme Court’s decision regarding the dismissal. In particular, the question of “additional compensation”, to which, according to art. 10 of the same ILO Convention 158 and art. 24 Revised European Social Charter (RESC), people dismissed without justification have this right. As is known, the European Committee of Social Rights condemned Spain (Decision of March 20, 2024, UGT v. Spain) for not recognizing adequate compensation, in terms of full reparation of all damages and with a dissuasive effect against unfair dismissals. Therefore, the primacy of the international standard interpreted in a certain sense by the organizations which monitor its compliance, which the TS now recognizes, seems to announce that the TS will also apply the international standard by modifying the maximum amount of compensation in the event of unfair dismissal, consistent with the doctrine of this judgment that we have just heard.
It should be remembered that in the case of the Revised European Social Charter (CSER), the Spanish Ministry of Justice has already recognized, in a report from the Council of State (file: 486/2021, July 8), its “legally binding and the decisions of the expert committee are binding. » Consequently, given that, as has been recalled, there is a decision of the ECSR, responsible in the European Social Charter for monitoring compliance by States with the rights recognized therein, expressly condemning Spain, it does not seem not that this is the case. It is reasonable to assume that the Supreme Court will depart from this doctrine when examining the amount of compensation for unjustified dismissals.
In short, this relevant judgment illustrates that we live in a new legal and working era, in which the defense of the “old” must give way to the construction of the “new”, giving due importance and predominance international labor rights guarantees. The EC and Spanish law on international treaties require it, their precepts are binding and must be interpreted in accordance with the consolidated doctrine of their guarantee bodies. Thus was decided, putting an end to the contradictions of judicial doctrine, the hearing prior to the termination of the employment relationship art. 7 C158 ILO, and there seems to be no legal reason why the same should not be the case with the additional compensation with a restorative and dissuasive effect required by art. 10 C158 ILO and art. 24 CSER, as the CEDS confirmed to us again. We’ll see.
