The Court rejects the allegation of unfair dismissal, confirming that the loss of the work permit justifies the termination of the contract, even if the resolution was not final, due to the lack of recourse on the part of the worker.

The Social Chamber has resolved the appeal no. 644/2023, filed against the ruling of the Social Court No. 2 of Palma de Mallorca, issued on May 5, 2023 (orders no. 342/2021).

The worker, Mr. Dionisio, had been providing services at the defendant company since July 16, 2018. He had a long-term residence in Spain, valid from May 3, 2011 to January 2, 2018.

On March 10, 2021, the worker was dismissed by means of an objective dismissal letter due to sudden ineptitude. The alleged cause was the loss of the legal permission necessary to work in Spain, which constitutes an objective cause for dismissal in accordance with article 52.a) of the Workers' Statute. The worker himself recognized this situation when the company requested it. Mr. Dionisio received the corresponding settlement including compensation for objective dismissal.

After the dismissal, on February 9, 2021, the worker requested the recovery of residence authorization, but this request was rejected for processing on February 23, 2021.

In the event, the dismissal was declared justified for not having proven the renewal of the work permit.

The worker filed an appeal based on three reasons.Subsequently, on 3/20/24, under art. 233.1 LRJS, the appellant requested the incorporation of a new document, a resolution of the Government Subdelegation in the Balearic Islands that granted him an extraordinary authorization for temporary residence due to roots., valid from May 21, 2022 to May 20, 2024. The appellant alleged that this document demonstrated the inadmissibility of the dismissal, since the company did not want to wait for the resolution of its appeals regarding its residence status.

The defendant company opposed the incorporation of the document, arguing that:

• The document was issued on April 25, 2023, but the appeal was formalized on May 30, 2023, failing to comply with the deadline established by article 233.1 of the Law Regulating Social Jurisdiction (LRJS)
• The document was not decisive, since the authorization was granted almost two years after the contested dismissal, which made it irrelevant to assess the legality of the dismissal at the time it occurred.

The Court decided not to admit the document for the same reasons argued by the company and considering that it did not alter the judicial classification of the dismissal.

  What were the reasons for the appeal?

Nullity of Actions:

The worker alleged that the court did not suspend the trial even though he requested it, since another contentious-administrative procedure regarding the renewal of the residence permit was pending. However, the Court rejected this reason for the appeal, considering that the appellant did not exhaust the procedural remedies to challenge said decision (such as the appeal for reconsideration) and that it also did not clearly identify the rule violated.

Review of the third proven fact:

The appellant maintained that the company was aware that the renewal of the residence permit was in the hands of a lawyer. The Chamber accepted this argument and incorporated a paragraph to the third proven fact, establishing that the company knew that the worker had entrusted the management to a lawyer.

Violation of law at the heart of the matter:

The worker alleged that the dismissal was unfair because the administrative resolution denying the permit was not final at the time of dismissal. However, the doctrine of the Supreme Court establishes that the loss of the work permit justifies the termination of the contract due to sudden incapacity (art. 52.a) of the ET).  Precedents are recognized in similar cases (such as the loss of a driving license or necessary qualification).The negative administrative resolution, even if it is not final, justifies the termination of the contract if the worker does not demonstrate that he has appealed said resolution..

The Court concluded that the principle of finality of the resolutions was not violated, since the worker did not prove that he had appealed the denial at the time of dismissal.

Failed: The appeal was dismissed. An appeal is possible for unification of doctrine.