The Plenary Session of the Fourth Chamber of the Supreme Court has upheld the appeal against the ruling of the TSJ of the Basque Country that opted for the annulment of the dismissals, on the understanding that they were prohibited and incurred in fraud.
The problem arises because Royal Decree-Law 9/2020, betting on the ERTE as a solution to the business problems associated with the pandemic, provided that force majeure and the economic, technical, organizational and production causes under which the measures of suspension of contracts and reduction of working hours cannot be understood as justifications for the termination of the employment contract or dismissal. This is what is frequently identified as the “prohibition of dismissal”.
According to the communication of the Judiciary, the text of the sentence, which will be announced in the next few days, concludes that dismissal, ignoring the provisions of said rule, should not be qualified as null, unless there is some specific information that justifies it (violation of a fundamental right, circumvention of of the procedural rules on collective dismissal, concurrence of a subjective circumstance generating special protection). To this end, the following is argued:
1º) Neither the aforementioned rule contains a true prohibition, nor the consequences of a fraudulent dismissal leading to its nullity, unless there is express normative provision (as in the case of circumvention of the collective dismissal mechanism). In the same way, going to the ERTE does not appear as a true obligation either.
2º) The qualification of the dismissal as null is ruled out because the provisions on the subject (both of the ET and of the LRJS) ignore the assumption of fraud (except in "drip" dismissals that elude the procedure of collective extinction).
3º) When there is a termination of the employment contract agreed by the company and it lacks valid cause, it must be qualified in accordance with current labor legislation, both due to the specialty of this sector of the legal system and due to the reference of article 6.3 of the Civil Code (qualifying as null the acts contrary to mandatory and prohibitive norms "unless they establish a different effect for the case of contravention").
The sentence has been approved in the last plenary session presided over by Ms. María Luisa Segoviano Astaburuaga, who ceases in office due to retirement, having been Judge Mr. Antonio Sempere Navarro as Rapporteur.
Joaquín Gavilá Cell
Head of Labor Department