The Court determines that the dismissal is justified, without evidence of fraud or discrimination

The appeal No. 1019/2023 presented by the company against the ruling dated August 2, 2023 of the Social Court No. 15 of Madrid is resolved (orders 107/2023)for dismissal and protection of fundamental rights.

The worker provided services from July 22, 2022 to January 13, 2023, under a full-time fixed-term contract linked to a program financed by European funds,as internship tutor. In the employment contract signed by the parties, it was established the period of test corresponding to your professional category, in accordance with the provisions of the Article 14 of the Workers' Statute.

He December 2, 2022, the worker started low Temporary Disability with a short duration forecast, obtaining medical discharge on December 16, 2022.

He January 3, 2023, the head of department issued a report proposing the termination of the worker's contract. This report argued that, since his incorporation, the worker had shown behavior that prevented the correct performance of his duties. He had not been able to coordinate adequately with his classmates or maintain common criteria during the training process. Furthermore, he did not comply with the instructions received for the performance of his work and did not maintain correct communication with the students, which resulted in inadequate supervision of their work.

He January 13, 2023, communicated to the worker failure to pass the trial period with effect from that same day.

In instance, was estimated the lawsuit filed by the worker against the company, declaring the nullity of dismissal from January 13, 2023 for violation of fundamental right to equality (art. 14 of the Spanish Constitution) and physical integrity (art. 15 CE)condemning to the defendant readmission of the worker and payment of processing salaries and compensation of 7,501 euros in compensation for moral damages.

The defendant company filed an appeal, alleging that the termination of the contract was fully justified, since he was notified that he had not passed the trial period within the period of 6 months, in accordance with the period established for his professional category in article 14 ET. Furthermore, the company argued that it is not necessary to justify the reasons that led the company to make the decision to terminate. It also denies the existence of legal fraud in the contracting, pointing out that the object of the contract was well determined.

The legal representation of the worker challenged the appeal alleging that the clause in the employment contract did not specifically specify the trial period, but instead made a generic reference to art. 14 of the ET. They considered that, because the category was specialist, the applicable trial period was two months, and that, when the dismissal was communicated, that period had already elapsed, so it should be considered null. Furthermore, they alleged that the tasks performed were permanent and were not contemplated in the purpose of the contract.

The Fiscal Ministry indicated in its report that there is a violation of fundamental rights, it is up to the defendant to prove the worker's lack of attitude and aptitude.

The TSJ of Madrid argued, on the one hand , that the worker was hired as a qualified technician since his job was as an internship tutor, based on the higher vocational training qualification, so the trial period as established by the ET was 6 months, within which his dismissal occurred. Furthermore, in the employment contract there is no indication of fraud and the hiring is justified. Finally, there is no evidence of discrimination, as indicated by the Public Prosecutor's Office, since the fact of being on sick leave for 14 days is a brief period that does not justify the presumption that it could be the cause of the termination of the contract. The protection of article 2.3 of Law 15/2022 protects against discrimination against sick people, but in this case it is not a sick person, but rather someone who has had a mild condition. The Chamber considers that, if the dismissal were declared void, the purpose of the trial periods would be distorted, since a minimum absence due to illness during said period could protect the worker, which is not the intention of the legislator. Nor did it find reasons to reverse the burden of proof.

The Court concludes, considering the appeal, understanding that the contract was in accordance with the law and that the resolution occurred validly within the trial period. Consequently, it revokes the ruling of the Social Court No. 15 and dismisses the lawsuit, absolving the defendant of all its motions.