He Superior Court of Justice of Madrid (TSJM) endorses that not previously hearing a worker’s version of the facts before fire him for disciplinary reasons does not constitute an automatic reason for inappropriateness. This has been determined in a recent sentence, in which they judged the dismissal of the managing director of the College of Social Graduates of Madrid, who was terminated for stealing at least €40,445.65 of the entity’s accounts.
Said decision opens a debate between courts, since the magistrates of the Balearic Islands consider that the fact of violating the right to a prior hearing does constitute an argument to claim the inadmissibility. A divergence of criteria that may end up having to resolve the supreme court.
The difference of opinion lies in international law, specifically in the article 158 of the International Labor Organization (ILO). This reads: “The employment relationship of a worker should not be terminated for reasons related to his conduct or his performance before he has been offered an opportunity to defend himself against the charges brought against him, unless the employer cannot reasonably be required to grant him this opportunity”.
In other words, a company cannot dismiss a worker for disciplinary reasons without first letting him explain himself. In the pioneering case of the Balearic Islands, a teacher was fired for making sexist comments to the students. And later the TSJB ended up declaring the dismissal unfair –with the consequent compensation that this implies-, proving that there was not a sufficient investigation into the accusations nor was the defendant allowed to defend himself. In Mataró a judge echoed this criterion and applied it in a pioneer sentence.
A criterion that is not shared, in the same way, by the Madrid magistrates. They interpret that the violation of the right of previous hearing it only automatically translates into inadmissibility if the dismissed is a union representative. If this is not the case, it may entitle the employee to claim compensation for damages, but after the fact and once he has appealed his dismissal in court and has won.
The case of social graduates
The facts that motivate this interpretation date back to May 2022, according to the sentence compiled by the UOC’s Vice Dean of Teaching, Ignasi Beltran, on his personal blog. The managing director of Official College of Social Graduates of Madrid He is called to the office by the president of the College for some numbers that do not add up. An audit detects that the managing director has been withdrawing money from common accounts as “advances & rdquor ;. The amounts amount to 40,445.65 euros. Some “advances” which were not subsequently subtracted from the salary that the managing director collected each month and which per year amounted to 89,415 euros.
From the school they activate an investigation and send him to the house of paid leave while it lasts. At that moment, the defendant’s keys to the offices are taken away, the facility’s alarm is activated, and access to his email account is cancelled.
And after a meeting between the lawyer for the defendant and the treasurer of the school, in charge of the investigation, the managing director receives a burofax in which he is notified of his dismissal for disciplinary reasons. “The College has detected various irregularities that they show a transgression of contractual good faith and that they deserve the decision of the Board to proceed with their disciplinary dismissal & rdquor ;, it reads, included in the sentence.
Related news
From the TSJM they do not see enough efforts on the part of the College to listen to the managing director’s version of events. Although they emphasize that, since he was not a union representative, this is not a reason to automatically determine the unfairness of the dismissal.
They do recognize that this lack of prior hearing could constitute a right to additional compensation later. But “since in this case the origin of the dismissal has been confirmed in the sentence, neither does the omission of the hearing prior to the dismissal make the dismissal unfair nor does it create a valuable damage for the purpose of setting any compensation, which on the other hand is not has claimed & rdquor ;.