The Superior Court of Justice of Galicia has declared the disciplinary dismissal of a waitress who was on a medical leave after a traffic accident inadmissible. The company dismissed it when, according to the letter of dismissal, being in a situation of temporary disability, it would have starred in an altercation with the employer’s wife, facts that were not tested in the trial. Therefore, the Chamber considers that there is no direct connection between the decline and the business decision, it rules out the nullity for discrimination and maintains that the measure lacked sufficient justification to be appropriate.
The origin of this dispute begins when this woman, after taking almost two years working as a waitress in a hospitality establishment in the province of Lugo suffers a traffic accident, which is why a medical leave for temporary disability must begin. This had a full -time indefinite contract and a monthly salary of 1,335.84 euros. Now, as explained by the sentence, this fact “was not controversial” and was protected by the collective hospitality agreement of the province of Lugo.
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A month and a half of being of medical leave (on May 10, 2024) the worker received a bureaux where the company communicated her disciplinary dismissal with immediate effects. In the letter he was charged with “a state, encouraged and allowed” that his partner assaulted and insults the businessman’s wife on April 4, an altercation that, according to the business story, was linked to an episode of infarction suffered by the employer’s woman. These facts gave rise to the intervention of the Civil Guard and the opening of criminal proceedings, which were finally provisionally dismissed.
After the dismissal, the worker presented a conciliation ballot before the SMAC, but it did not reach any agreement, so, given the view of the facts and seeing that her dismissal was unjustified, she decided to go to the courts.
Improper, but not zero
Although the worker sought that the dismissal was considered null, that is, that the company had the obligation to incorporate it again and pay the salary not perceived, this was not so, since both the Social Court No. 4 of Lugo and Lugo’s Superior Court of Justice of Justice declared the dismissal as inadmissible.
Although the worker alleged that the dismissal was discriminatory, the TSJ understood that no, but he said that extinction constituted a reprisal because he was in a situation of temporary disability after a traffic accident, violating his right to equality and the guarantee of indemnity. To do this, he cited jurisprudence of the Supreme Court, of the Constitutional Court and the TJUE, as well as Law 15/2022 on equal treatment and non -discrimination.
There was no discrimination
The key to which the dismissal was inadmissible and not null is that the Superior Court of Justice of Galicia did not appreciate any discrimination because of the disease or temporal disability. That is, although the worker was on a medical leave at the time of cessation, the Chamber understood that there was no “direct connection” between that situation and the business decision.
To sustain this argument, the court indicated that the incident of April 4, even if it was not fully proven, contributed some “likelihood” to the cause alleged in the letter of dismissal. In addition, he recalled that nullity requires clear indications that dismissal is due to a discriminatory reason, and that, in this case, “extinctive communication lacks connection with the IT situation in which the worker was.”
Therefore, the applicable legal sanction was the inadmissibility of dismissal, in accordance with article 55 of the Workers’ Statute, and not their nullity. In this scenario, the company must choose between reincorporating the worker or paying compensation of 3,019.36 euros. If it had been void, I would be obliged to readmit it and to pay you all the salaries stopped perceiving.