The company did not provide the reasons for the dismissal of a worker who was going to be a father.
The worker, Miguel, filed a lawsuit for dismissal against the company for which he had worked since December 6, 2022, in the category of laborer (Case No. 521/2023 Social Court No. 2 of Salamanca).
He June 9, 2023, the company notified him of the dismissal. In the dismissal letter, the company alleged a continuous and voluntary decrease in your performance l job, compared to his previous job and that of his colleagues, especially in recent weeks. They justified the dismissal with article 54.2 of the Workers' Statute and article 50.G of the Salamanca iron and steel collective agreement.
In the dismissal letter, the company included a liquidation proposal with a compensation of €968.80. Miguel,He became a father on August 4, 2023, almost two months after the dismissal, and in the statement of claim argued that the real reason for his dismissal was not the decline in his performance, but he wanted to exercise his right to enjoy leave for the birth and care of a minor. Therefore,requested that the annulment of the dismissal be declared or, subsidiarily, which would be considered unfair.
The defendant company did not appear at the trial.The Court considered that the dismissal could not be declared null and void based on article 55.5 of the ET, which deals with disciplinary dismissal.. This article states that “s Any dismissal that is motivated by any of the causes of discrimination prohibited in the Spanish Constitution or in the law will be void (…). The dismissal of workers during the periods of suspension of the employment contract due to birth, adoption, custody, risk during pregnancy, breastfeeding referred to in article 45.1 d) will also be void (...) provided that no more than twelve months have elapsed from the date of birth, the adoption is kept for the purposes of adoption or foster care.
He article 45 of the ET contemplate the causes of suspension of the employment contract and section d) includes “Birth, adoption, custody for the purposes of adoption or foster care, in accordance with the Civil Code (…)”. The article 48.4 Paragraph 2 regulates the suspension of the contract due to the enjoyment of maternity leave by the parent other than the biological mother.
In the E.T. The nullity of the dismissal produced during the enjoyment of the leave and after it is established, when no more than twelve months have passed since the birth, but Nullity is not established when the dismissal occurs prior to taking the leave.
The Magistrate-Judge,determined that Miguel's dismissal was not void, but considered it inappropriate because the company could not prove the reasons mentioned in the dismissal letter. He condemned the company to choose, within a period of 5 days from notification of the ruling, between reinstating Miguel under the same conditions or compensating him with €968.66. In the case of opting for reinstatement, the company also had to pay the processing salaries that Miguel stopped receiving, calculated at €50.32 per day. If the company did not communicate its decision to the Court within the established period, it would be understood that the readmission would proceed..
