The Supreme Court has ruled in favor of a company against a cleaning worker who took almost three years to report that he had been fired. The company discharged him from Social Security in June 2020, just after his medical leave ended due to a work accident. Shortly after, the Security recognized his total permanent disability, but years later, the Social Security decided that he had improved and withdrew that pension, and it was then that the worker wanted to return to the job and, failing to do so, he reported the dismissal, which was dismissed by the Supreme Court.
According to the ruling, the worker had been employed since 2011 when he suffered a work accident in December 2018. He was on leave for the legal maximum, almost a year and a half (18 months or 545 days), and at the end of that period the company discharged him from Social Security in June 2020.
Three weeks later, Social Security recognized his total permanent disability, although he requested one of a higher degree (absolute). During the next two years he tried twice to return to the company in a position adapted to his limitations, but they told him that there was no space. In November 2022, Social Security reviewed his case, concluded that he had improved, and removed his pension with effect from December 1.
That’s when he decided to sue for dismissal. The Social Court number 1 of Almería and then the Superior Court of Justice of Andalusia, where they told him that he had let too much time pass and could no longer complain.
It is worth knowing that when a company discharges a worker from Social Security at the end of his or her medical leave, the law understands that it is ending the contract, even if it does not give him or her any dismissal letter. From that moment on, the worker has only 20 business days to present the conciliation form if he or she believes that the dismissal is unfair or void. It is a short period and cannot be paused: once it has passed, you can no longer claim that way even if things change later.
Why the Supreme Court doesn’t agree with him either
Even so, the worker filed an appeal before the Supreme Court, but the High Court explains that this door only opens when a sentence is clearly absurd or contrary to the obvious, not when one simply disagrees with the judge’s criteria. He also reminds him that before getting there he should have tried another intermediate remedy, the so-called annulment incident, which he did not do.
In this ruling, it is important to know that, for anyone whose contract ends after exhausting the maximum duration of temporary disability, the 20-day period begins to count from the moment the company communicates the withdrawal to Social Security. You cannot wait to see what the INSS decides or to request reinstatement. Whoever takes longer may be left without the right to claim, even if they later recover their health and their disability is removed.