The company does not prove the completion of the work for which the employee was hired

The Court has partially upheld the appeal filed by the worker against ruling No. 37/2023 of February 28, issued by the Social Court No. 1 of Reus (dismissal orders No. 1019/2020).

The plaintiff, Mr. Justiniano, had been working for a company specialized in forestry and logging within the agricultural sector. He was hired on November 18, 2019, under the contract modality for specific work or service, as specified therein, for felling and cordoning work in the Flix fire (Tarragona). It is important to highlight that this hiring was temporary since it did not address a permanent or ordinary need of the company.

On September 27, 2019, the company verbally notified Mr. Justiniano of the termination of his contract due to the end of the work, with effect from that same day. However, the corresponding compensation for termination of the contract was not paid. It should be noted that he had been a father and enjoyed paternity leave in two periods, the second of which ended on the same day on which he had been fired.

In the trial, it was proven that the defendant company had acted as a contractor for the restoration work in the area affected by the fire in the period between October 2019 and July 2020. Therefore, the worker, from the end of the work contracted until being dismissed, had been carrying out work other than those contemplated in the object of the employment contract signed between the parties. In addition, another employee of the company hired in the same Tarragona contribution account code had left the company on February 9, 2021, that is, after the termination of the plaintiff's contract. However, it had not been proven that this employee performed the same functions as the plaintiff.

In instance, the claim presented by D. Justiniano, was upheld, qualifying the dismissal as inadmissible s according to the provisions of art. 56 of the Workers' Statute. Consequently, the company was sentenced to choose either to reinstate the worker and pay the wages not received from the date of dismissal until the notification of the sentence, in the daily amount of 40.18 euros, or to pay 1,215.44 euros as compensation (33 days per year of service, prorating by month the periods of time less than one year up to a maximum of 24 monthly payments).

On March 7, 2023, an order was issued to clarify the sentence at the request of the plaintiff.The legal representation of Mr. Justiniano filed an appeal proposing the review of two proven facts under art. 193 of the Law Regulating Social Jurisdiction (LRJS). On the other hand, it requests an examination of the law applied in the lower court ruling.

In the judicial resolution that is discussed, it was imputed infringement of art. 55.5 a) of the ET and 108.2 a) LRJS, as well as the doctrine contained in the STSJ of Catalonia no. 2081/2022 of April 4 l. In summary, it was argued that we were facing a direct or automatic null dismissal, “ that of workers during periods of suspension of the employment contract due to birth (…) or that notified on a date such that the notice period granted ends within said periods.” In July 2020, the works for which the defendant company had been hired had been completed, with two employees remaining on the job, one until 9/27/2020 and the other until 2/9/2021, so the appellant understood that the true cause of the termination was paternity, which is why the application of art. 55.5 a) of the ET.

The appealed sentence ruled out the fraudulent nature of the temporary construction contract, declaring the dismissal unfair due to the lack of written notification and failure to comply with the notice period established in the applicable collective agreement. It was based on the fact that the termination of the contract was due to the cessation of the work and not to the enjoyment of paternity leave, that the worker could not return to work because he had completed his task. Furthermore, it indicated that the plaintiff was assigned to tasks other than those of the contract signed between the parties, with no express acceptance or subsequent agreement.

Also,The violation of art was invoked. 14 of the Spanish Constitution and of doctrine of the Constitutional Court alleging that there were indications of discriminatory action, the only reason for the dismissal being the appellant's paternity.

The Court, in its analysis, maintained that the dismissal occurred when the employment relationship was suspended since he was enjoying paternity leave and two months had passed since the completion of the work. It was clear that the termination of the employment relationship was totally linked to said permit without the company having proven any real justified cause for the termination.  It was concluded that the dismissal was discriminatory, violating the worker's right to conciliation as established in art. 14 CE.

The TSJ of Catalonia partially upheld the appeal filed by Mr. Justiniano revoking the lower court resolution, partially upholding the claim, declaring the nullity of the dismissal for violating fundamental rights, condemning the company to reinstate the worker with payment of the wages lost from the date of dismissal until the effective reinstatement takes place and to pay 6,251 euros as compensation for moral damages.