A judgment handed down by the Labor Chamber of the Supreme Court has declared that the status of workers’ representative cannot be exercised from the time of the disciplinary dismissal until the court ruling is handed down. This does not violate the provisions of article 67.3 of the Workers’ Statute regarding the duration of the mandate of the workers’ legal representatives.
A Supreme Court ruling addresses a case in which all the plaintiffs, members of the workers’ committee, had been dismissed on disciplinary grounds. The workers’ representatives had brought the corresponding claim for dismissal requesting that it be declared null and void or, in the alternative, unfair. However, as such proceeding was being conducted, the dismissed workers’ committee members requested the company to access the workplace to attend the committee’s meetings.
Faced with the company’s refusal, the employees filed a complaint with the Labor Inspectorate, which issued an injunction to the company to ensure respect for the employees’ trade union rights. Likewise, they filed an action for the protection of fundamental rights in parallel with the challenge to their dismissals, asking to be allowed to exercise their representative functions meanwhile the challenge to their dismissals was being processed.
The High Court of Justice of Catalonia, in its judgment dated September 6th2019, dismissed the claim filed on fundamental rights. Dissenting with the court decision, the employees sued an appeal for the unification of doctrine on the understanding that the workers’ representatives should be able to continue to perform the functions of representation in order to maintain the necessary dialogue with the company to defend the interests of all employees Refusalto do so could result in them being unrepresented and a new election procedure could not be carried out, as long as the proceeding for dismissed representatives remains in force.
The high court, in its judgment dated April 25th 2023, dismissed the appeal for the unification of doctrine filed by the employees, declaring that there was no breach of fundamental rights. The judgment points out that the protection or guarantee of the workers’ representatives in the period prior to the declaration of nullity or unfairness of their dismissals would come hand in hand with the regulation that the legislator has designed for that purpose and object in the proceeding of fundamental rights, through the figure of precautionary measures without evidence of having been requested by them.
The court states that the representatives could have asked for, in the same application for protection, the suspension of the effects of the contested act, as well as the other measures necessary to ensure the effectiveness of the judicial protection that could be granted in a judgment. If they had so asked for, it would have been possible to suspend the effects of the contested act in order to avoid prejudice that could make the claim for protection lose its purpose (for example, if they are prevented from participating in an electoral process or prevented from participating in collective bargaining, restructuring of the workforce or other matters of transcendental importance). provided that the suspension would not cause a serious and disproportionate disturbance to other constitutionally protected rights and freedoms or higher interests. However, in so far as they failed to do so, they cannot be recognised as entitled to exercise their representative function meanwhile the challenge to their dismissals is pending.
In short, the court confirms the arguments of the judgment handed down by the High Court of Justice of Catalonia, arguing that the employment relationship is terminated with dismissal, without prejudice to the fact that, subsequently, the employment relationship and the functions inherent to the condition of workers’ representatives may be reinstated by a judgment declaring the company’s decision null and void or unfair.
