Labour Law


We commented on this occasion the decision of the National Court 10 September, in establishing that after the labor reform, sectoral agreements can not force companies to set wages.

Indicates the judgment that the Royal Decree-Law 3/2012 not retroactive, but if it deploys its effects on a standard lower hierarchically.

The principle of non-retroactivity, not preclude the retroactive called minimal (STS 27-06-00) because the new legislation applies to effects that are born after effect. (STS 23-9-91).

Although the Royal Decree-Law 3-2012 not retroactive, this does not preclude its application to the purposes of the Convention since the entry into force of the regulation having the legal, even if it had been negotiated prior to such date.

In the case in question the Convention establishing the priority of sectoral agreements the Company in certain matters. This is contrary to the new wording of Article 84.2.a of ET, that gives priority to enterprise agreement regarding the amount of salary and allowances and Article 84.2.c ET, which gives preference to the regulation of business and distribution schedule of working time.

In conclusion, the Social Chamber of the National Court declares void several paragraphs of the agreement, specifically, those considered as contrary to the new wording of Article 84.2 Part A, with effect from 12-2-2012.


25 The 24 WIll Fogasa?

Pays Fogasa 40% of compensation in the event that the company is under 25 workers.
In the case before us, at the time of the notice of dismissal, the company had 25 Workers and the moment in which the firing is effective, had 24 workers. • Will the Fogasa?
The Supreme Court Judgment 2 April 2012, clarifies the scope of Article 33.8 Workers Statute (AND) which establishes liability to pay Fogasa 40% -eight days per year worked in the current wording- of compensation for objective dismissals under twenty companies workers.
The date to be taken into account to compute the number of workers of a company required to produce the obligation of payment of the compensation by the Wage Guarantee Fund (Fogasa) for dismissal for objective reasons is that it takes place the extinction of the employment relationship and not in that communicates with the termination notice to the employee.
In the present case, denied Fogasa as providing “affected by the record company had more than 24 workers on the date of the decision to terminate”. However, the High Court of Justice (TSJ) Castile and León, understood that “the event giving rise to the obligation of Fogasa not communicating the decision to terminate, which may or may not produce the desired effects by the company, but the effective termination of the employment relationship is what generates compensation obligations that must participate in Fogasa”.
The Supreme Court affirms this ruling in its appeal for unification of doctrine, rejecting the conclusion of the judgment of contrast, the Supreme Court of Andalusia, deemed as the date to consider firing the communication.
The day that should be noted is the fact that labor is dismissed.
But also, the High Court rejected the date to take into account may be the communication, based on that Article 33.8 ET has the responsibility for compensation for “of workers whose employment has been extinguished (…) This supports that if the liability arises in contract termination, the date of the event can be nothing but the extinction of that, never one in which you communicate the future cessation”.


abogado despido verbal

If a worker says he has been fired and the company verbally denies What?

We analyze the Supreme Court's judgment 19 December 2011.
In fact assuming a worker says he was fired by the company verbally, keep coming to work and sues the company for dismissal. The company denies that the worker has been fired.
After the conciliation, the trial at first instance and the appeal, interposes an appeal for unification of doctrine in the Supreme Court.
The underlying theme is to determine who bears the burden of proof. The Supreme Court concluded:

"SECOND.- The appellant contends that the judgment infringes Article. 217 the Lec ., in relation to arts. 54 and 55 Part A ., establishing the point of contradiction concerning the burden of proof on the existence or not of a verbal dismissal, contradiction to be estimated because the sentences concurrently reach counter solutions compared as to who has the burden of proving the existence of dismissal which the plaintiff claims to have produced a verbal, without stating any other circumstances proving that fact.
And correct doctrine on the matter under discussion is the contrast of the judgment, this is, that is the plaintiff must prove that the fact-verbal dismissal- establishing the legal effect intended ( art. 217.2 Lec .); without it can be argued on an alleged probation ease the defendant, since the worker may well go to the entrepreneur, the written word, accompanied by witnesses, following the dismissal of that claim to have been, requiring him to admit it to work, while for the employer, not as an abandonment of the worker object, such a test would be a negative.”

The above considerations lead, as noted by the Prosecution, to estimate a resource.

It gives the company reason. It is the worker who claims and therefore, which must have tested his dismissal.



The case discusses the judgment of the Labour Court of Pamplona # 3 of 1 March 2012 is as follows:
A worker files a lawsuit to terminate the employment relationship by the Company defaults under the provisions of Article 50 Part A.
Later the company presents an ERE to dismiss employees.
The court in its judgment said:

"The delay in the payment of wages if it is here, since it is performed in a systematic, and with more than two months delay, and extending over one and a half, adjudicative body for the purpose specified in Art.50 of the Statute of Workers, what determines the estimated resolutory action and, at the same time, action of claim amount for the two owed the company payroll, and without which there is no record of payment of the January monthly, thus leaving aside what is the purpose of this procedure, without prejudice to any entitlement in another proceedings for the plaintiffs.
At the conclusion obtained can not be maintained or invoke the fact that the defendant has now put a record of employment regulation extinguishment character since such record has been filed on the same date in which was held the act of judgment, and not even yet been resolved by the labor authority, not being in any case causes estimating enerve adjudicative action exercised prior to the application of a force adjustment on the part of the defendant. Ultimately, accordance with the rationale, we can only estimate the demand, declaring the termination of employment contracts that bind the company to the plaintiffs, and condemning the defendant to pay the legal compensation under Art. 50.2 the Statute of Workers, ultimately, refers to compensation for unfair dismissal. "

As for the question of what should be the amount of compensation, taking into account the entry into force of Royal Decree-Law 3/2012, (for if the 45 al of the day 33) specification applies "prorated by month periods less than one year", ie to the question of how to proceed with the days that fail to complete the entire month, be applied to the two sections or only one of them and in this case what.
The judge explained that there are two formulas for calculating:
1. "Understand that applies the apportionment by months of the remains of the two parts of the period computable, the previous and subsequent to the entry into force "
2. "Understand that applies the apportionment by months of the remains of the period one computable, specifically that would be after the entry into force and apply a pure arithmetic rule for the period prior to the entry into force "
This second formula is the one that means the most correct judge to avoid cases of double counting of months.

Economically dependent worker (TRADE) ? Employment or civil-commercial?

To clarify the issue, discussed the Supreme Court decision, 4th Chamber of the Social 24 November 2011.

The case is the following: A carrier, claiming economically dependent worker status (TRADE) filed a complaint with the Labour Court, in claim for damages for cancellation by the customer will not cause. The court judgment upheld the plea of ​​jurisdiction opposed by the defendant and filed then appealed by both parties, were dismissed. The question is whether this court has jurisdiction to resolve the issues arising from the implementation of contracts called TRADE, when it comes to contracts entered into before the effective date of the Act 20/2007 that meet the requirements of this, to be classified as such. The solution requires, previously, determine whether these contracts automatically passed governed by Law 20/2007 , after its entry into force, or if the application of this rule to them required the adaptation of these contracts it, under the second transitional provision of the Act mentioned in connection with the First Transitory Royal Decree 197/2009, of 23 February , competition because of the court order is determined by the time those contracts become TRADE, the date on which are worthy of that score and pass regulated by Law 20/2007.

The particular Supreme Court in its judgment criteria:
“”Unlike the case of the notice requirement established in Article. 12.2 YEAR , under which “the self-employed should be stated in the contract economically dependent status from the client that hires, as well as variations which occur about”. This is no longer a formal requirement, but is associated with the necessary knowledge by the employer of one of the budgets of the contract: the economic dependence. This situation usually only be known by the self-employed, it is he who has the information about the clients for providing services and the earnings on them. Conversely, without the knowledge of this fact the customer whom a contract may be assuming a dependent self-employment contract when in fact their intention is to establish a civil or commercial contract in common with ordinary self-employed. Thus, communication of the dependency is a prerequisite for the existence of the agreement on establishing contractual relationship. "" ..... "The application of the legal regime is, course, mandatory when the necessary conditions for this. But the signing of the contract is not. A self-employed and your client have to know the nature of the contract he signed and the customer has to know you are hiring a service to be provided in a situation of economic dependence. Hence, the worker is required to report this fact or the burden of proving, if, that the client knew the hiring. If knowing this fact is hired, legal regime applies, but try to be excluded by the parties or by the terms of the settlement reached. The law is intended to ensure that customer knowledge about the conditions under which contracts.

Well, in this case was contracted before the entry into force of the law and no evidence that at any time after that date will contact the customer the economic dependence of the worker, nor has it been established that the company knew this circumstance. Thus, the link between the actor and the client company could not be qualified as a link dependent self-employment itself and at this point it is irrelevant that the information has not been produced within the transitional provision LETA 2-3rd in the previous wording 15/2009 -, or after the expiration of that period.”
"In this case it is clear that at the moment there is a cessation did not adapt the contract, or had passed within 18 months for adaptation; period began to run from the entry into force of Royal Decree 197/2009, the 5 March of that year. "

Therefore, nor was the deadline for adaptation, nor had communicated to the client company the dependence. Accordingly, there was no dependent self-employment contract and could not be competent social order to hear the claim presented in these proceedings that is not derived from that contract, or professional regime applicable to it under the LETA.”

If the contract is signed after the entry into force of the LETA, apply the rules provided by the same. But in this case, the contract predates.

As a conclusion, originally signed the contract between the parties was civil or commercial, if the new, or became TRADE and, hence, social jurisdiction was not competent to resolve issues arising from his termination, not be applicable to art. 17 Act 20/2007. It dismissed the appeal for unification of doctrine.



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