In a case of harassment, the High Court tells the Social Court that it has to reanalyze the facts that led to the dismissal.
The Plenary Session of the Supreme Court has resolved an appeal, formulated against the ruling handed down on February 13, 2023, appeal no. 454/2022, presenting against the ruling handed down by the Social Court No. 4 of Palma, orders no.
The plaintiff worked as a teacher in the Theater Theory Area at a Drama School, and was also part of the management team, serving as secretary. On September 2, 2019, he signed an interim contract due to vacancy. Due to several complaints from her students for certain harassing behaviors, on December 17, 2020, the center's head of studies informed the education inspector that the teacher was harassing a student, mentioning that she had been informed that in previous courses there had been similar situations.
On December 22, 2020, a group of students presented a formal complaint with 25 testimonies and supported by 56 signatures corresponding to witnesses. Subsequently, on March 8, 2021, the professor, in a letter addressed to the center, made his position as secretary available, "due to the current situation of the center." A day later, the Educational Inspection issued a report in which, after assessing the facts, it recommended imposing a disciplinary sanction in accordance with the applicable agreement and article 58 of the Workers' Statute (ET).
On March 31, 2021, the teacher was informed of his disciplinary dismissal, based on article 54.2 d) of the ET, for serious breach of contractual good faith and serious breach of duties. The alleged acts included inappropriate comments towards female students during individual tutorials, such as "what a short absence" or "you come looking very pretty today." He also tried to contact some of his students outside the academic field through social networks.
The Social Court, declared the fair dismissal but the worker appealed the sentence. He TSJ of the Balearic Islands, declared it unfair, condemning the company to choose between the reinstatement of the worker and the payment of processing salaries or the payment of legal compensation. The TSJ based its decision on the insufficient motivation of the lower court ruling regarding the evaluation of the evidence, although it did not annul the ruling. He focused on analyzing whether there were formal defects in the dismissal, and after ruling out errors in the dismissal letter, he argued that the company had not given him the opportunity to defend himself and make allegations of the facts that had been attributed to him. The lack of this formal requirement determined the inadmissibility, since it violated art. 7 of ILO Convention 158, ratified by Spain in 1985 although this requirement was not contemplated in art. 55 of the ET, (art. 55.1 requirement that the dismissal must be notified in writing, stating the facts that motivate it and the date on which it will take effect).
The company appealed in cassation for unification of doctrine, invoking as contradictory rulings that of the Constitutional Court of March 12, 2007 (Rec. 1807/05) and that of the Supreme Court dated September 15, 1988, which referred to the interpretation of art. 7 of Convention 158 of the ILO. The plaintiff argued that there was no contradiction between the cited rulings, however, the Public Prosecutor's Office considered that the appeal should be upheld, because the doctrine of the Supreme Court had already resolved similar issues in the rulings provided as contrast.
The legal debate focused on determining if the disciplinary dismissal required, in advance, the hearing of the affected worker.
To date, the jurisprudential doctrine of the TS had interpreted that ILO Convention 158 was not directly applicable by the Spanish courts.The Supreme Court has changed its criteria and argues for it based on art. 96.1 of the Spanish Constitution and in art. 23.3. of Law 25/2024, of November 27, on Treaties and other International agreements, together with the rulings of the Constitutional Court 198/20133 and 87/2019. These regulations establish that international treaties validly concluded and after their official publication, form part of the internal legal system and bind the public powers. Therefore, art. 7 of ILO Convention 158 of 6/22/1982, ratified by Spain on 6/18/1985, is directly applicable, with no regulatory development necessary for its compliance.
The Plenary Session of the Supreme Court has resolved that for the correct termination of the employment relationship due to disciplinary dismissal, a prior hearing of the worker is required, unless the employer cannot reasonably be asked to grant this possibility.. The reasonableness criterion for the employer not to grant the prior hearing must be evaluated according to the specific circumstances of each case. These must justify why it was not possible or appropriate to grant said opportunity to the worker, which is different from avoiding or evading this step.
The High Court In accordance with what was reported by the Public Prosecutor's Office, the appeal was partially upheld for unification of doctrine and concludes that, since no formal defects were detected in the disciplinary dismissal, The appropriate thing would be to analyze whether the conduct attributed to the worker justifies disciplinary dismissal.. However, since the appealed ruling upheld the first reason for the appeal, which pointed out defects in the reasoning of the lower court ruling and the insufficiency of proven facts, aspects that were not challenged, the Court considered that It was necessary to return the proceedings to the Social Court. Said court must issue a new sentence, taking into account what is established in the second legal basis of the supplication sentence and resolving the issue of the facts alleged in the dismissal letter, identified in the third legal basis of the same resolution.
