Social Security removes the permanent disability of a welder because he can now work, his company declares him “unfit” to return and the court recognizes 33,888.82 euros if he is not reinstated

The Superior Court of Justice of Navarra has declared inadmissible the dismissal of a welder whose permanent disability was removed by Social Security because he could now return to work and the company declared him “unfit.” The court refuses to consider it an objective dismissal, so they must choose between reinstating him or paying him compensation of 33,888.82 euros.

According to the ruling, the worker had been in the company since 2010, receiving a gross salary of 2,070.60 euros per month with extra pay included. In May 2020 he had a work accident, for which, after a long sick leave, they had to give him total permanent disability for his usual profession in June 2022, but with the position reserved, since, according to the Disability Assessment Team, it was expected that he could improve (this review could be done from June 2023).

This reservation of the position obliges the company to keep the job for two years from when the disability was recognized, as stated in article 48.2 of the Workers’ Statute.

Thus, in May 2024, Social Security reviewed his permanent disability and declared him fit to return to work in his usual profession. The problem (and dispute of this sentence) is that, when he asked to return in October, the prevention service examined him on the 22nd and a week later they declared him “unfit” for his position, so the company did not let him return.

Even so, the worker asked in writing to return to work “in a job suitable for his work capacity,” but in December the company responded that the employment relationship was already terminated and that they could not replace him in any position in the company due to his limitations. For that reason he went to court.

The Court of Instance of Pamplona agreed with him and declared the dismissal as unfair, because the company did not reinstate him or study the possibility of adapting the position to him. The company went to the Superior Court of Justice alleging that it was not an unfair dismissal as such, but due to sudden ineptitude (for no longer being able to do their job), a type of objective dismissal for which it would only be entitled to compensation of 19,169.40 euros, which is 20 days per year worked.

The company had to prove that it could no longer work

The TSJ of Navarra rejects the company’s appeal, since it did not cite any rule that the ruling had violated, so that “it fails to comply with the minimum requirements for its viability.” He explains that, even if the dismissal was due to ineptitude, it would also be inappropriate, since the company never met the requirements for this type of dismissal.

In fact, remember, as the Supreme Court has already pointed out, that “the mere declaration of unfitness by the prevention service is not sufficient to consider the cause invoked proven.” The ruling (which can be consulted in the Judiciary) forces the company to choose between reinstating the worker or paying him compensation of 33,888.82 euros.

Keep in mind that the review of permanent disability can also be appealed, as was done by a cashier-restocker whose permanent disability was withdrawn by Social Security, but the court returned it when it was found that neither her arthritis, nor her depression nor her migraines had improved.