The High Court of Justice of the Balearic Islands, in Ruling 237/2023, reinstated the right of workers to a hearing in the event of dismissal.
According to Article 7 of Convention No. 158 of the International Labour Organisation (ILO) on Termination of Employment at the Initiative of the Employer, adopted in Geneva on 22 June 1982 and ratified by Spain, provides, in cases of termination of the employment relationship for reasons related to the conduct or performance of the worker, the obligation to offer him the possibility of defending himself against the charges brought against him, unless the employer cannot reasonably be requested to grant him this possibility.
Until now, companies dismissed workers who had committed a serious and culpable breach of contract without having to hold a hearing, which was a simpler procedure.
However, since the ruling of the TSJ of the Balearic Islands, the usual situation has changed completely. Before making a Disciplinary Dismissal effective, the employer must offer the employee the possibility to argue what he or she considers appropriate in his or her defence.
The company shall grant a period of between two and three days so that the employee may make any allegations that he/she considers appropriate, which may change the company’s opinion, before being dismissed.
Until the Supreme Court rules on whether or not this requirement is mandatory, it is extremely important that companies that, for disciplinary reasons, decide to apply the workers’ statute or the sanctioning regime of a collective labour agreement, before doing so, i.e. before issuing the letter of dismissal, will be obliged to open a prior hearing period.
If this Prior Hearing is not used, the Disciplinary Dismissal will be considered Unjustified even if there are sufficiently serious causes to terminate the dismissal of the worker.
Finally, it should be pointed out that if the company considers the dismissal to be unfair, and its intention is to pay the compensation that legally corresponds to the worker, it does not need to carry out this procedure.
It should be remembered that there are other rulings from other autonomous communities such as Castilla y León that do not maintain the same criteria as the TSJ of the Balearic Islands.
