The worker alleges violation of fundamental rights and requests an annulment while the company maintains that it believed she was on medical leave. The dismissal is declared unfair.

Appeal is resolved 1135/2024 filed by the legal representation of Ms. Danitza, against ruling 88/2024 issued by the Social Court No. 6 of Oviedo, in the dismissal procedure 810/2023.

Mrs. Danitza provided services as a waitress, with a full-time indefinite contract with a seniority date of 10/1/2021, being the Collective Agreement applicable to Hospitality and similar sectors of the Principality of Asturias.  Since 7/11/2023, he was on medical leave due to a common illness, with the diagnosis of “other specified anxiety disorders.”On 9/17/2023 the medical discharge was issued at the request of the Mutual although his primary care doctor processed a new discharge.

The company, on 9/21/2023 sent a burofax to Ms. Danitza demanding her reinstatement within 24 hours or, failing that, the justification of her absence, since she had not come to work since September 18. No response was obtained from the worker.

On 9/26/2023, the company notified by burofax the disciplinary dismissal, arguing unjustified absences from September 18 to 25, based on the provisions of art. 54.2 a) of the ET and art. 50 of the Sector Collective Code, which classifies absence from work for more than three days as a very serious offense, punishable by dismissal.

On 10/30/2023 the conciliation ceremony was held, in which Ms. Danitza requested the annulment of the dismissal and compensation of €10,000 for moral damages. The company recognized the inadmissibility of the dismissal, but no agreement was reached between the parties, concluding the “No Agreement” act.

The question to be resolved was whether the business decision to terminate the contract was discriminatory because the worker was in an IT situation, which would imply a violation of fundamental rights.

In the lower court ruling, the dismissal was declared unfair., arguing that the company was unaware that Ms. Danitza was still on medical leave and that the issuance of a new medical leave report did not exempt the employee from her duty to communicate to the employer the reasons or impediments to returning to work. It was considered proven that there was no discrimination due to illness or health condition, so the declaration of nullity or the compensation requested was NOT applicable.

The Superior Court of Justice resolved the appeal presented by the plaintiff and challenged by the company, based on a single reason: violation of art. 193 of the LRJSS section c), denouncing the violation of art. 55.5. of the ET, as well as doctrine of Supreme Court Sentences. In his reasoning he explained that, in order to shift the burden of proof to the company that there had been no discrimination, it is necessary that there be reasonable grounds for discrimination. Without the existence of evidence that generates discriminatory intent, it cannot be considered that fundamental rights have been violated.

Although the “illness or health condition” is not expressly integrated as a cause of discrimination in precepts 14 of the Constitution and 17 of the ET, it is no less so since July 14, 2022, since the entry into force of Law 15/2022, of July 12, for equal treatment and non-discrimination, this protection has been expressly included in its article 2.1. The law, effective July 14, 2022, expressly prohibits discrimination based on illness or health condition, so it is applicable to this case.

The Court dismissed the plaintiff's appeal and confirmed the lower court resolution. The Public Prosecutor's Office and FOGASA were part of the process.