Once the disciplinary dismissal of a worker adopted as reprisal for having testified in a trial against the company is declared null and void, it can be compensated for the infringement of a fundamental right, even when the moral damage has not been specifically proven.
Judgment delivered by the Supreme Court on 5 October 2017 [JUR 2017\283582]
The present litigation is about a dismissal declared null and void for the infringement of a worker’s fundamental rights. However, what was discussed in the sentence refers to potential compensation for moral damages.
The worker –teleoperator specialist–, member of the works committee, attends to testify in the trial regarding a collective conflict lawsuit. Afterwards, the company dismisses the worker who had testified in the aforementioned trial, based on disciplinary grounds, and days later, dismisses the worker based on disciplinary grounds charging him with false testimony in the trial outlined.
Therefore, the worker seeks compensation for moral damages of EUR. 30,000, considering that such action constitutes a very serious breach by the company. The Labour Court qualifies the worker’s dismissal null and void due to the infringement of their fundamental rights, condemning the company to the worker’s reinstatement and the payment of the compensation claimed. The sentence is appealed before the Superior Court of Justice that estimated the business request referring to the severance, considering that the severance should not be imposed automatically without alleging the bases and key elements and without attesting in the process, at least, sufficient guidelines or points of support in which a compensatory sentence can be established. Consequently, the Superior Court of Justice revokes the ruling of the Labour Court in relation to the severance payment for moral damages, confirming the qualification of the dismissal as null and void for an infringement of the worker’s fundamental rights.
Therefore, once the violation of the worker’s fundamental rights has been proven, what must be fixed now is the amount of compensation. It seems logical to consider the sanctions provided for very serious business infractions. In this sense, Article 8.2 LISOS considers as a very serious infringement “the decisions of the employer that involve unfavorable treatment of workers as a reaction to a claim made in the company or before an administrative or judicial action to demand compliance with the principle of equality of treatment and non-discrimination”.
For the Supreme Court, these considerations lead to consider suitable the amount of compensation established in the judgment at the first instance, since the amount of EUR. 30,000 is not unreasonable or arbitrary. In this sense, the company has not developed any useful arguments to prove possible compensatory disproportion, since it has only focused on denying the right for it.