The condition or termination clause agreed by the parties has no validity because it displaces the regulation specifically established for the case of dismissal due to organizational, technical or productive grounds.

Judgment delivered by the Supreme Court on 14 November 2017 [JUR\2017\288358]

The employee of the present case worked as an operator of peripherals in a multinational. She had a first contract to perform specific work or services determined from 7 December 2009 to 1 August 2010. Subsequently, on 2 August 2010 she signed a new contract to perform specific work or services for platform traffic monitoring tasks of attention. The tasks included in it consisted of traffic monitoring and user management, in which the expression “according to the contract signed with our client” and “except for volume reductions”.

Subsequently, on 11 July 2013, the company informed the worker of the termination of her work contract with effects from 31 July 2013, alleging that the work for which she was hired had been reduced by a high percentage, relying on the clause of the contract that said, “except volume reductions”. 

Therefore, in the present case the validity of the clause incorporated in the fixed-term work contract in which its termination is contemplated by reduction of the work volume of the client company is discussed.

According to case law, the contract to perform specific work or services whose purpose is to carry out an activity contracted with a third party for a specific period of time is valid, extending its duration for the time covered by the contract, although its conclusion is not expressly provided in the collective agreement.

However, case law understands that while the contractor is the owner of the contract –because of an extension or a new assignment– it cannot be understood that the employment relationship has come to an end. Therefore, it must be rejected that the cause of termination is the unilateral decision of the company, or the partial resolution of the client company’s order. It has also been established that the early termination of the contract by agreement of the companies involved does not constitute a valid cause of termination of employment, which then places us before an unfair dismissal.

The Supreme Court establishes the possibility that the employment contract incorporates causes that act as a condition subsequent, which does not mean that all the civilian construction on that figure is directly transferable to the labor sphere. However, very serious adaptations must be made. It is important to highlight the impossibility of redirecting to this category of extinctions the facts that have a clearer fit in other openings of the Worker’s Statute.

For example, it would not be worth the termination forecast in the event that the company suffered significant losses, or knotted to the disappearance of the legal person employed, or the one related to the ineptitude of the worker; in all these cases and in many others, they refer to extinctions established in cases of organizational, technical or productive problems, that is, corresponding to a superior sphere to that of the worker; and therefore, the priority of typicality prevails, so that the reality has to be included in the legal section in which they have a better fit.

In the present case, the fixed-term contract signed between the company and the worker has its natural cause of termination in an event that has not occurred: the completion of the assignment that the main company makes to the aforementioned employer. On the other hand, the condition or termination clause agreed by the parties is not valid since it comes to displace the regulation specifically established for the assumption of organizational, technical or productive problems – principle of priority typicality–.

Thus, when the agreed clause that allows the termination of the contract of the worker due to the reduction of the volume of activity is considered null, it will not be applicable. Therefore, since the cause that leads to the dismissal of the worker is non-existent, we are facing an atypical unfair dismissal.

Once the final criminal sentence was delivered, the worker claimed the payment of compensation for damages to the promoter before the labour jurisdiction. Therefore, in this case it is debated whether the final judgment of the Criminal Court of acquittal of any criminal and civil liability to the promoter must produce effects of res judicata in the subsequent processes before another jurisdiction, claiming civil liabilities.

This debate must be resolved in a positive sense, when, as occurs in the current case, in criminal proceedings, the criminal sentence examined the civil liability, declared it, quantified it and sentenced another person with acquittal of the defendant in the previous process.

In fact, the civil liability derived from the unlawful act, as well as the criminal responsibility, is the only one and if it is judged on a criminal proceeding, since there was no reservation of those civil actions for a future process and a conviction has been handed down, is definitively resolved by res judicata, which is imposed for the sake of effective judicial protection, legal security and the prestige of the courts that is lost if contradictory resolutions fall on the same issue.

This occurred in the present case in which the existence of civil liability of the appellant company and its administrator was controversial and declared in the first instance, but left without effect on appeal by the criminal judgment that acquitted the appellant and at the same time confirmed the civil liability conviction to another legal entity.

Therefore, because of that fact already judged, civil liability cannot be claimed again.