“I don’t think the mentality you have fits our mentality here.” (…) as I have said from the beginning, if you work in a service company connected to a customer who is willing to die for and we are in the most difficult times. When the Black Friday campaign comes, then you will die directly.“. With these words, the head of an order management company justified not considering that this has been overcome in October 2022 trial period a decision made by one of your employees declared invalid by the courts At the same time, on the grounds that it violates the rights of the employee He received compensation of 7,501 euros.
This is an example of the application of the so-called guarantee of compensation, a legal principle intended to prevent companies from taking retaliatory measures resulting from the practice of protecting workers’ rights, applied to labor relations.
HE Francisco Trujillo, professor of Labor and Social Security Law at Universitat Jaume I He points out to El Periódico de España of the Prensa Ibérica group that there are increasingly penalties that are not so tough when it comes to appreciating the evidence necessary to activate this guarantee; requires the employer to prove its reasons Dismissal or decision contrary to the interests of the employee.
power differences
In the mentioned case, the telephone conversation between the employee and his direct boss, which was presented as evidence in the case, was, according to this expert, “the power differences and how Attempts are made to prioritize the company’s competitiveness rather than health and work-life balance needs. of the working person”.
In this regard, the Constitutional Court states that dismissal is valid in cases claimed by the employee. discriminatory or prejudicial to any fundamental right, It is the employer’s responsibility to prove the existence of a reasonable reason for dismissal by presenting evidence that will create reasonable doubt. This protection also applies to a union’s claims for collective disputes or Complaints to the Labor Inspectorate.
The decision to pay compensation to the dismissed worker was made last March. Toledo Social Court #1. The worker signed a contract with a 45-day trial period that will last between September and December 2022. on October 3 After a phone call with his direct manager, He was informed that his business relationship had ended.
Unpaid overtime
Throughout this speech, which is repeated in sentences, the worker inconsistency due to lack of respect work day acceptance, his boss responds by claiming that this activity requires overtime and that he will not be compensated.
“I started at three-twenty and arrived at a quarter to seven, I didn’t rest or drink.. “I’ve been there for about an hour,” the worker says when asked by his boss why he is not at work: overtime is not paid and “it’s a matter of responsibility.”
“I actually have a lot of anxiety because I feel sorry for my colleagues. But it’s not my fault that they accept such conditions. I definitely fight for my rights, so I looked into the career I was studying for.“, to which his supervisor responds, the employee claims: “… Well then, what we will give you has not exceeded the trial period. (…), because I think the mentality you have does not match our mentality here…”.
For the judge judging this case, the speech gives the impression of “a panorama showing that this clearly happened.” internal demands of the worker This led to the decision to “extinguish” the employment relationship between them, personally in the presence of the company, citing the respect for workers’ rights in terms of the working day. The employer did not provide any evidence In order to refute the “indicator that harms the fundamental rights of the worker”, the dismissal must be declared invalid, the woman must be reinstated and compensation must be paid.
However It’s not always easy to prove to a judge that your dismissal was retaliatoryAnother decision recently published by: Supreme Court of Justice of Madrid On December 1, he refused to apply the compensation guarantee to the case of an employee who was dismissed from a real estate company in August 2022 and attributed this employment decision to someone else’s mistake. Salary request made one year ago, and won in court.
In this case, the judges recognize the conflict situation, but appreciate that it occurred a year before the dismissal and that subsequent recruitment by the company would not replace a worker they had given up on, as they were of a different nature. categories.
According to Trujillo, this decision is relevant because “this decision The importance of presenting rational evidence “A possible breach of the compensation guarantee, as well as the need for the company to objectively and reasonably justify the measures adopted”, is an explanation that the judges considered good in this case. Therefore, signs of retaliation should not remain apparent. The decision stated that these allegations were only suspicions, but “a reasonable factual basis with minimal basis They emphasize that they constitute “genuine facts that allow for explanation”.