Justice endorses the dismissal of a union delegate for absenteeism · Legal news

Patricia Esteban.- Trade union representatives are also subject to the limits of labor absenteeism provided for in the Workers' Statute.When assistance offenses exceed the thresholds provided for in the law, dismissal is appropriate unless there are founded indications that their rights are being violated.This is established by a recent resolution of the Social Court N.º 3 of Burgos (whose text can consult here), which endorses the cessation of a union delegate of a meat company for being low for nine days in two consecutive months, and twenty -four days in a year.In his judgment, the judge rejects that the measure had injured his rights to freedom of association, the guarantee of indemnity or equality."The fact of being affiliated with a union with great union and uncomfortable activity for the company is not sufficient indication of violation of the actor's right of freedom," says the ruling.

The company applied the cause provided for in article 52 of the Workers' Statute, which allows the employee to accumulate a high level of casualties, still justified.In these cases, the priority of permanence of the committee members in the company regarding other workers in case of layoffs for technological or economic causes established in article 68 of the labor standard is not applied.

Risk of infection

The dismissed employee had been working as an operator in the company for more than fifteen years, the last seven as a union delegate and member of the Company Committee, an activity for which he filed complaints before the Labor Inspection and actively participated in claims and judgments against the company.True reason why, according to the trade unionist, he was fired.Without denying work offenses, the employee justified some of these absences.In those cases that stayed at home for being affected by processes during which he could infect pathogens when manipulating the meat, he said, he accepted the forecasts of the Code of Good Practices.In addition, he said, there were two days that he was using his "credit of union hours".

In his demand, he requested the nullity of cessation for violation of his rights to freedom of association and indemnity, being a "retaliation" for his "important" activity in this field.In addition, the employee alleged, had been discriminated against, as it was the only case of dismissal for this reason, there are more workers who accumulated these low levels.For all this I asked for 125.000 euros of compensation.Failing that, he requested the declaration of inadmissibility of dismissal, for lack of notice and communication to the union committee.

The company, on the other hand, justified the cessation in response to the "great concern for the high absences of the company in general".In accordance with the data provided, the level had risen from 5.76 % in 2017, to 11.65 % in the first half of 2018, until staying at 8.10 % in November of that same year.These figures had motivated a "struggle plan" against absenteeism, which was set, among other measures, an "individual absenteeism reduction plus" and the setting of a level of absenteeism as a criterion to ascend within the pact of the pact of theCompany for 2017 to 2020.

As for the reasons for the absence of the employee, the company argued that its performance had not been correct.In case of danger of pathogen transmission, and according to the code of good practices, he had to communicate the situation so that from human resources to value the possibility of entrusting him other types of tasks.On the other hand, he rejected that they could be counted as "union hours" the days when he was on low disease.

Two and a half years of accumulated casualties

The sentence rejects one by one the worker's arguments and considers proven offenses to the workplace due to common illness (catarros and gastroenteritis).A total of nine days in two consecutive months, and twenty -four throughout the year, which exceeded the absenteeism margins allowed.In addition, according to the documents presented, the employee had been a total of 1.054 days of low since 2003 (year of its incorporation), that is, 2.8 years of the 15 worked.Figures that, as confirmed by the judge, support their dismissal in application of article 52 of the Workers' Statute.

According to the judge, they did not exist, according to the evidence presented, sufficient indications that made the cessation suspicious.As recalls in its resolution, both the Supreme Court and the Constitutional Court require a "proof principle" of the existence of discrimination or violation of rights.It is not enough to report it, he affirms.

On the other hand, he argues, there is also no formal vice that causes the inadmissibility of dismissal.Neither the lack of communication to the union representatives (only mandatory in the assumption of disciplinary dismissal), nor the absence of notice (which, in any case, would lead to economic compensation), distributes, concludes, the validity of the cessation.

Cause of dismissal in question

According to the labor standard, the accumulation of faults of work assistance, still justified but intermittent, can be a reason for the objective dismissal.A type of cessation different from that allowed by unjustified faults to work (contractual breaches that popularly identify with absenteeism), which can motivate disciplinary dismissal.

With the aim of protecting the productivity and competitiveness of the company, the employer can fire the worker who reaches a certain level of absenteeism.As required by section d) of article 52 of the Statute, the employee must have lacyear.They are excluded from the computation, among others, the casualties due to maternity, paternity, licenses and vacations, work accident, strike, cancer or common diseases of more than 20 days.

This is a cause of controversy, which has been the subject of pronouncements of the Supreme Court, especially regarding the calculation of absenteeism percentages.Remember that the 2012 labor reform facilitated its application by eliminating the requirement of having a certain collective level of absenteeism of the workforce.Currently, its validity is discussed before the Constitutional Court, which last July admitted an appeal for unconstitutionality for possible violation of different fundamental rights, such as physical integrity, the right to work and health of employees.

A rebound of dismissal for absenteeism?

During the crisis, the fear of losing the job reduced the social security expense in work casualties.However, the latest data provided by the Ministry of Labor have disrupted the plan to reverse the upward trend in disbursement for this cause: in the first half of 2019, the expenditure on casual.

After the entry into force of the mandatory registration last May (established in Royal Decree-Law 6/2019, of March 1, of urgent measures to guarantee equal treatment and opportunities between men and women inemployment and occupation), the objective sentences of absenteeism.This system will facilitate, at least theoretically, the proof that workers have exceeded the minimum number of faults required by the regulations.