The admissibility of the dismissal is confirmed as it was a dismissal prior to the TS ruling of 11/18/24 and as the lack of a hearing at the appropriate time was not challenged.

The appeal number 231/2024, filed by the legal representation of the worker against the ruling number 50/24, dated February 14, 2024, issued by the Social Court number 5 of Palma, in the dismissal procedure (orders 715/2022), is resolved.

The worker,Ms. Adela, performed duties as a housekeeper in a hotel, under a discontinuous contract since April 2018. On July 2, 2022, using the personal and non-transferable master key,appropriated “AirPods” headphones that customers had left behind when leaving the establishment. These headphones had a geolocation device that made it possible to determine their location, coinciding with the worker's home and another hotel where the plaintiff's son worked.

In the company's Welcome Manual, given to the worker upon joining, the obligation to deliver any lost object to the department head is established. The company verified who had accessed the room after the clients left and found that the first access had been made by Ms. Adela.  They contacted her and she admitted having headphones, informing that she would return them on July 5, since on the 3rd and 4th she was on leave. Ms. Adela returned the headphones as soon as she returned after her days off, although she also paid the client the amount of the headphones, which amounted to €375.17.

On July 6, he held a meeting with human resources, in which he was informed of the client's intention to file a complaint with the Local Police. The company offered him the possibility of voluntarily leaving, which he initially accepted by signing the corresponding document. He subsequently retracted that decision and continued working until the date of his dismissal. On July 12, 2022,The company proceeded to dismiss the worker based on article 54.2.d) of the Workers' Statute, which justifies dismissal for “violation of contractual good faith or abuse of trust in the performance of work”. Also, article 40.2 of the V Hospitality Labor Agreement was applied, which considers “disloyalty or abuse of trust in the entrusted efforts” to be a very serious offense, punishable by dismissal.

In the event, the disciplinary dismissal was declared appropriate. Given this resolution Ms. Adela filed a petition alleging that an infringement had been committed by not respecting the right to a prior hearing before dismissal as established in article 7 of ILO Convention 158, article 56.1 of the Workers' Statute and applicable jurisprudence.(TSJ of the Balearic Islands rec 454/2022 and TSJ of Extremadura rec 326/2023). These rulings are cited because, in them, they deal with the need to offer the worker the possibility of defending himself before his dismissal.

What is debated in this case is whether the prior hearing criterion should be applied or not..  In the Supreme Court ruling of November 13, 2024, a momentous issue was resolved regarding the right of workers to be heard before their employment relationship is terminated for disciplinary reasons. The Court changed its previous position and adopted the interpretation of Article 7 of ILO Convention 158, which establishes that the worker must have the opportunity to defend himself before dismissal, unless it is not reasonably possible to grant such a hearing.

The ruling highlights that the ILO Conventions ratified by Spain are binding and must be complied with, even if domestic legislation, such as the Workers' Statute, does not expressly include it. The Court affirms that the right to a prior hearing is enforceable automatically and does not depend on additional rules, although there is flexibility in the way in which this right can be guaranteed.

The Court rectifies its previous position, which did not require a prior hearing in certain dismissals, and establishes that, if this opportunity is not granted to the worker, the dismissal must be considered unfair and compensation cannot be provided for the lack of said compliance.

However,The Court also clarifies that the doctrinal change is not retroactive and dismisses the appeal. If the dismissal occurred before the sentencing, the application of the new doctrine will depend on the specific circumstances of each case.In the specific case, since it was a dismissal prior to the TS ruling of 11/18/24, and since the lack of a hearing at the appropriate time was not challenged, the admissibility of the dismissal was maintained.. On January 26, 2024, the worker had presented a document expanding her claim, asking that the dismissal be declared inadmissible due to a formal defect, specifically because the prior hearing before dismissal had not been offered.

There is an appeal against this ruling for the unification of doctrine before the Fourth Social Chamber of the Supreme Court.