The Social Chamber of the Supreme Court decided this Monday 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. A decision which consolidates the “prior hearing” procedure in dismissals of this type. Of course, the resolution is not retroactive.
As the Alto Tribuna explains in a press release, the decision (which was taken byor unanimously of the plenary session of the Fourth Chamber), is based on the need to directly apply art. 7 of convention no. 158 of the International Labor Organization (ILO), in force in Spain since 1986.
To do this, he modifies his own doctrine, created in the decade of the eighties, which justifies by “the changes that have occurred in our system during this time“, such as international treaty law, constitutional doctrine, the qualification of dismissal and the inapplicability of the most favorable norm at the global level.
The ILO Convention requires this hearing prior to dismissal “unless it cannot reasonably be requested from the employer” and the Fourth Chamber understands that this is what is happening in the case which concerns a professor ofand the Fundació Escola Superior D’art Dramàtic de Baleares which was reported by the students “for inappropriate behavior with female students“.
According to Europa Press, the professor appealed his dismissal, although the court initially ruled against him, and he later appealed to the Social Chamber of the Superior Court of Justice of the Balearic Islands, which in a judgment of February 2023 , said the dismissal. inadmissible and ordered the Foundation to reinstate the worker under the same conditions as before the dismissal.
This also includes payment of salary or, failing that, payment of compensation of 64,178.28 euros. The Foundation then formalized an appeal in favor of the unification of the doctrine before the Supreme Court.
The High Court now understands that the company was protected by a jurisprudential criterion which, having persisted over time and in relation to this same provision, freed it from the requirement of a prior hearing. Of course, the High Court specifies that this caution is “valid for dismissals occurring before the publication of this judgment for the reasons that it itself indicates”. ANDThat is to say, it is only required for new layoffs.
