Javier (fictitious name to protect his identity) fell into a coma on May 1, 2023, Workers’ Day. Tests carried out at the La Candelaria Hospital in Tenerife revealed that he had contracted a bacterial infection, pneumococcal meningitis. After waking up, he was transferred to Gran Canaria and admitted to the ICOT Ciudad de Telde Concerted Hospital, which specializes in brain injuries, with severe cognitive impairment and a total impairment of his volitional capacity (controlling his actions). He was discharged four months later, on September 1, although he had to undergo daily rehabilitation and outpatient treatment.
He didn’t know it yet, but during those months, the energy company where he worked as a secondary manager had fired him. It was his sister who found out after consulting his professional life. When he asked for it, they gave him a balance and settlement document. There was no dismissal letter. The employment relationship had ended on June 3, the date on which the third temporary contract that Javier had held since June 2021 ended. All of them lasted six months and the first had been extended for another six months.
In total, two uninterrupted years of work in two different work centers, two electrical substations located in the south of the island of Gran Canaria (Salinas and Maspalomas). His company was covered by the collective agreement of the steel industry and electrical installations of the province of Santa Cruz de Tenerife.
After learning of this dismissal, Javier’s sister decided to take the matter to the labor law firm and file a lawsuit for wrongful dismissal.
In this letter, to which this newspaper had access with the anonymized data (the interested party preferred not to specify the name of the company), it was alleged, first of all, that the worker had been hired fraudulently through a series of temporary contracts.
These contracts did not respond to “an occasional and unforeseeable increase in the normal activity of the company” nor to the need to carry out “specific work or a service of a temporary nature” and, therefore, his lawyer understood that the employment relationship had to become indefinite from the first moment.
The lawsuit pointed out that the company, by not delivering a letter of dismissal or termination of the contract, had left the worker defenseless. Not only had Javier been fired while he was in a coma, but he had also received no communication.
In its article 59.3, the Workers’ Statute provides that the possibility of taking action against a dismissal or the termination of a temporary contract expires twenty working days from the day it occurred. And the expiration periods cannot be interrupted. When his sister learned that the company had waived Javier’s services, more than three months had passed since the dismissal.
Despite the deadline having passed, the lawyers decided to take legal action against the dismissal. To do so, they relied on an article of the 1969 Civil Code, which states that “the limitation period for all types of actions, when there is no specific provision that provides otherwise, will be counted from the day on which they could be exercised.”
“There is a doctrine of the Supreme Court that says that if a worker finds himself in an absolute obstacle to exercising the dismissal action, the expiration period is suspended,” explains Carlos Berástegui, one of the lawyers of this firm.
The lawsuit also stated that there was no “good cause” for the termination of the contract and that, therefore, it should be considered an unfair dismissal.
The legal appeal was presented at the end of October 2023. The conciliation ceremony took place last July before the Social Court 9 of Santa Cruz de Tenerife. And in this document, the company representatives ended up recognizing the abusive nature of the dismissal and paid the worker the appropriate compensation, just over 3,000 euros.
