As was already the case with the interim, the Court of Justice of the European Union has once again highlighted the Spanish labor legislation. On this occasion, the court of Social No. 33 of Barcelona has declared null and void a dismissal that occurred during the temporary incapacity of a worker (medical leave) following the European court’s decision.

It is a case that marks precedent since, if it were not for the intervention of Europe, said dismissal would have been inadmissible instead of null.

DIFFERENCES BETWEEN UNFAIR AND NULL DISMISSAL

Labor jurists point out that the inadmissibility of a dismissal and the null dismissal are radically different. When the judicial body declares a dismissal inadmissible, it does so alleging that there was no reason to practice it, or that the termination decision lacks the minimum requirements required by the Law. Against this, the declaration of nullity is raised, which is based on the fact that the dismissal was practiced violating fundamental rights and public freedoms, which protects our constitution.

So, and it is the most relevant, are the consequences of such a statement. In this sense, if the inadmissibility of the dismissal or unfair dismissal is declared, the company must choose to reinstate the worker or compensate him in the amount corresponding to the unfair dismissal. However, if the dismissal is declared null, the company can not opt ​​for it, so it must reincorporate the worker in his job and paying the processing fees. And these are no more than those that are not received from the date of dismissal until the date on which the sentence is notified. For this reason, processing salaries are usually much higher than any compensation.

Having seen the above, and entering to analyze the judgment of the Court of Social No. 33 of Barcelona, ​​of December 23, 2016, which is the dismissal of a cook injured from a well-known hotel. The origin of everything was the work accident suffered by the worker, slipping, falling and fracturing several bones during his workday. After several weeks in a situation of temporary disability, the company notifies the worker of his disciplinary dismissal, alleging “not having met the expectations established by the company or the performance that the company considers appropriate or suitable for the performance of their duties in their job“

A SENTENCE THAT MARKES PRECEDENTS

Well, the novelty lies in the fact that this ruling considers that the dismissal of the worker in a situation of temporary disability (medical leave) is not inadmissible, but null. For this reason, the worker must be reinstated in the company, with identical working conditions and the payment of the processing salaries in case of estimating the null dismissal. This ruling, despite having been issued by a first instance court, sets antecedents since the preliminary rulings issued by the European Court of Justice have been the determining factors to a large extent in obtaining this ruling.

It is necessary to take into account that, the judge of first instance reaches the conclusion that there is nullity (dismissal done violating constitutional rights, in this case the right to physical integrity and health), while discriminating against the worker for his condition of “disabled”, a concept that the Court of Justice of the European Union has already qualified as a worker in a situation of temporary disability that has a lasting nature of his disability on the date of dismissal. Precisely that is the concept that the aforementioned Court uses as a disability for the purpose of describing dismissal as discriminatory, and which on the other hand already include the European Directive 2000/78, C335 / 11 and C-337.

Therefore, the dismissals practiced on workers in a situation of temporary disability, which are expected to be extended over time, and that can be considered as disabled, already have a protection against dismissal much greater than the current Spanish jurisprudential doctrine came to him guaranteeing, in which it was exclusively considered the inadmissibility of the dismissal in case of proving that the real motive of this one, was the situation of illness.

Origin: www.nuevatribuna.es