The Supreme Court has closed the door for a judge to increase the compensation that a worked worker receives in the improper way. The social judges explain that neither the agreement of the International Labor Organization (ILO) nor the last update of the European Social Charter force to pay more than 33 days per year worked since in them “it is only indicated that compensation must be adequate.” The resolution explains that the decisions of the European Social Rights Committee, an organ of the Council of Europe, are not binding for the courts.
The European Social Charter contains in its article 24 the expression “adequate compensation” to refer to the money to which a worker is entitled when he is fired inadmissively. That expression, says the supreme, “is literally inconcreta.” “It is not directly applicable mandates, but of programmatic statements, of open interpretation, whose concrete virtuality would demand a legislative intervention,” he adds. That is, the courts will not increase compensation until there is no legal change in that regard.
In this case, the Plenary of the Supreme Social Chamber has gathered to study the case of a worker of a Catalan gardening company hired in February 2022 and disciplinary dismissed seven months later. A court in Barcelona understood that his dismissal had been inadmissible and forced the company to pay several compensation to the worker. Among other amounts, more than 5,400 euros for “unemployed profit”: the difference between the unemployment benefits that it charged after being fired and the salary that would have corresponded to it.
The Superior Court of Catalonia annulled that additional compensation. Neither the worker nor the court made the “damages” of the worker beyond comparing the salary with the benefits he charged. The doctrine, said the TSJC, “demands that damages be subject to express and concrete in demand.” That a benefit is lower than a salary, said that resolution, is common and not an “exceptional assumption” that can justify “the recognition of a compensation for dismissal that is superior to the legally established.” In this case, in addition, the recognized compensation of 1,500 euros was initially “consistent” and not “meager,” said Catalan judges.
The judges of the Supreme, who will announce the complete sentence in the next few days, understand that the Spanish constitutional doctrine has declared as “adequate” the appraised compensation of 33 days per year. “This legal formula has been offering legal certainty and uniformity for all workers who, given the loss of the same employment, are repaired in the same terms.”
Second sentence on compensation
The Supreme Court already issued a sentence similar at the end of last year but in a lawsuit that did not take into account the revised version of the European Social Charter. A woman hired as ‘Operation Manager’ in a company in Barcelona and who was fired shortly after the arrival of the pandemic alleging bad economic perspectives for the health crisis. The Catalan courts ended up recognizing that their dismissal had been inadmissible and increased their compensation above 33 days per year worked. The Supreme Court then replied that “the appraised compensation that our legislation has established is adequate compensation.”
The unions and experts in Labor Law have already explained that this Supreme Judgment marked the way to many cases, but that the important resolution was yet to come: the one that was issued but applying the revised version of the European Social Charter that currently collects, “the right of the workers dismissed without valid reason to adequate compensation or another appropriate reparation”.
Compensation in Spain for dismissed workers in the inadmaking has meant several varapalos from Europe. Last June was the European Social Rights Committee, an organ of the Council of Europe, which collected a complaint from CCOO and understood that Spanish regulations on the inadmissible dismissal violate the European Social Charter because the fixed limits of compensation “are not sufficiently high.” Something similar to what already resolved in 2024 before a claim of UGT, although as a novelty consider that the courts should be able to impose on companies in certain cases the readmission of the workers, something that now does not exist.
The Supreme Court comes out of these decisions of the European Committee, noting that “they are not executive or directly applicable among individuals.” This committee, he explains, “is not a jurisdictional body or its resolutions are sentences”, as is the case of the European Court of Human Rights or the Superior Court of Justice of the EU. Their decisions, they add, “do not even link the Committee of Ministers of the Council of Europe itself, nor to the internal courts of each State.”
Source: www.eldiario.es
