2024-01-07 09:56:26
“I think that the mentality you have does not fit with the mentality we have here.” (…) when you work in a service company linked to a client who, as I told you from the beginning, is demanding to die for, and we are in the most demanding dates. Well, when the black friday campaign arrives, well then, you will die directly.“. With these words, the head of an order management company justified in October 2022 not to consider it surpassed the trial period of one of its workers, a decision that was declared void by the courts for violating the rights of the employee, which was also compensated with 7,501 euros.
This is an example of the application to labor relations of the so-called indemnity guarantee, a legal principle that seeks to prevent companies from take retaliatory measures derived from the exercise by the worker of the protection of his rights.
He professor of Labor and Social Security Law at the Universitat Jaume I, Francisco Trujillo, points out to El Periódico de España, from the Prensa Ibérica group, that there are more and more sentences that are not so demanding when it comes to appreciating the necessary evidence to activate this guarantee, which requires the employer to prove the reasons of dismissal or decision contrary to the interests of the worker.
Power differences
In the aforementioned case, a telephone conversation between the employee and her direct boss, provided as evidence in the case, clearly demonstrated, according to this expert, “the power differences and how An attempt is made to prioritize the company’s competitiveness over health and work-life balance needs. of the working person”.
On this matter, the Constitutional Court has been stating that, when it is invoked by the worker that a dismissal is discriminatory or harmful to any fundamental right, By providing evidence that generates reasonable suspicion, it is the employer’s responsibility to prove the existence of a reasonable reason for dismissal. This protection also applies in the event of collective dispute demands by a union or as a result of complaints filed with the Labor Inspection.
The ruling that compensated the dismissed worker was handed down last March by the Social Court number 1 of Toledo. The worker signed a contract that was to last between September and December 2022, with a trial period of 45 days. On October 3rd, After a telephone discussion with his direct manager, He was informed of the termination of the employment relationship.
Overtime that is not paid
Throughout this conversation, which is reproduced in the sentence, the worker shows her discrepancy due to not respecting the working day agreed, to which her boss responds by claiming that the activity requires overtime for which she will not be compensated.
“I left at three twenty and arrived at a quarter to seven, I did not rest or drink. I have been there for an hour or so more,” the worker explains when asked by her boss why she was not in her position, to which she responds by pointing out that overtime is not paid and that “it is a matter of responsibility.”
“Actually I have a lot of anxiety, because I feel bad for my colleagues. But it’s not my fault that they accept these types of conditions. I certainly fight for my rights, which is why I have studied the career that I have studied.“, alleges the employee, to which her superior responds: “… Well then the ones we will give have not passed the trial period (…), because I think that the mentality you have does not fit with the mentality we have here…”.
For the judge who evaluated this case, the conversation suggests “a panorama that clearly indicates that these are internal claims of the worker before the company itself, referring to the respect of their labor rights in terms of the working day, which led to the adoption of the decision “extinguishing” their employment relationship. As The employer also did not present any evidence To disprove the “harmful indication of the fundamental right of the worker”, the dismissal must be classified as null and void and the woman must be reinstated and compensated.
But It is not always easy to prove to a judge that your dismissal is retaliationanother recent ruling, issued by the Superior Court of Justice of Madrid On December 1, it refused to apply the indemnity guarantee to the case of an employee, fired in August 2022 from a real estate company, and which attributed this business decision to a salary claim that had been made a year before, and that he won in court.
In this case, the magistrates recognize the situation of conflict, although they appreciate that it took place a year before the dismissal and that the hires made subsequently by the company were not to replace a worker whom they had dispensed with, since it was of different categories.
According to Trujillo, this ruling is relevant because “it highlights the importance of presenting rational evidence of a possible violation of the guarantee of indemnity, as well as the need for the company to objectively and reasonably justify the measures adopted”, an explanation that in this case the judges accepted as good. Thus, the signs of retaliation should not remain in mere suspicions, but constitute “authentic facts that allow a reasonable factual account to be made and with a minimum of substratum,” they emphasize in the resolution.
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