Ruling of the Supreme Court of Justice, 16 June 2016

Disciplinary Proceedings – Adversarial Principle - Right to defence – Irregular Disciplinary Proceedings

In the ruling under review, the Supreme Court of Justice (SCJ) concluded that the adversarial principle and the right to defence had been violated during disciplinary proceedings, by dint of the inquirer not having responded to the request made by the employee in his reply to the Notice of Misconduct, to annex a current account that allegedly existed between him and the company, which thereby rendered the proceedings under review null and void. 

The SCJ drew attention to the the fact that although the employer had the right to refuse to take steps for the defence requested by the employee, should it deem them completely impertinent, it is, nevertheless, obliged to state the grounds for such refusal, since only then can the Court rule on the merits of the inquirer's position. 

Since the inquirer did not state his position with regard to this request, the employee was prevented from mounting his defence. When confronted with a refusal decision and its justification, the employee would always have the opportunity of adopting a different strategy for his defence, in particular one which would encompass the grounds invoked to refuse to gather evidence as requested.

Ruling of the Supreme Court of Justice, 16 June 2016

Set Term contract – Burden of Proof – Cabin Crew Salary Progression

In the ruling under review, the SCJ concluded that, in view of the very specific nature of the set term employment contract, its legal justification and intrinsic facts must be expressly contained therein, since they comprise the basis for establishing the validity of the set term and the transience of the situation. The employer is tasked with proving the facts underlying the legal justification for concluding a set term contract, in addition to the respective transitoriness, including the need for the agreed set term. 

Concerning the issue of cabin crew salary progression, this is determined by length of service, unless disciplinary measures have been imposed, there are outstanding disciplinary proceedings or other grounds for denial pertaining to occupational performance or professional conduct, and provided they are stated and justified in writing.

Since the situations referred to in the previous paragraph are exceptions to the general rule of automatic salary progression, it is the employer's responsibility to allege and prove the grounds for denial.