In July the Latch back. Recently, it has been made public that the Supreme Court will soon resolve on international regulations. A moment, was this not decided in the? Not quite. That famous sentence decided that we did comply with ILO Agreement 158. Now, the Supreme Court must pronounce on whether our internal legislation complies with the European Social Charter, which requires Spain to recognize, among other things, “the right of dismissed workers for no valid reason.” In this way, the Supreme Court must rule on whether our appraised compensation is “adequate.”
Many people are not interested in the Latch back. They understand that the first leg won as a win and that this second game lacks interest. Indeed, in that judgment, the Supreme Court indicated, for the purpose of the ILO agreement, which also requires that compensation for dismissal without valid cause be adequate, which “corresponds to internal laws to determine the appropriate compensation.” However, I will give some reasons to pay attention to this second leg.
First, the Supreme Court in the past has reached different conclusions when interpreting international standards that present similar writings. For example, with respect to whether the company must pay the salary accessories during the holidays, the Court interpreted that Convention No. 132 of the ILO on paid vacations allows internal standards, including collective agreements, excluding such supplements from the holiday salary.
On the other hand, when interpreting article 7 of the European Directive on working time, which requires that the annual holidays be “paid”, the court itself has established that no usual salary complement can be excluded, not even through an agreement in collective agreement. In order not to miss the truth, it should be said that between one interpretation and another he measured a judgment of the Court of Justice of the European Union that cannot interpret the ILO agreement, but the European Directive of Work time.
This jurisprudential evolution leads to a second issue that the Latch back especially interesting. The European Social Rights Committee, when resolving, has concluded that the Spanish compensation system appured by dismissal does not conform to the demands of international regulations, considering that it does not guarantee adequate compensation (and returned to do it later).
This pronouncement has generated an intense doctrinal debate about the degree of linking the decisions of the Committee for the Spanish Supreme Court, an issue that we will not address in detail in this analysis. However, it is undeniable that it is a novel element (because it could not be taken into account in the first leg because the CSE was not in force in that case) that must be considered when evaluating the adequacy of our compensation system to international worker protection standards. There is a new player in the game.
The third reason of interest in the Latch back It is the finding that normative inflexibility can generate situations of injustice. Specifically, the existence of a maximum limit in compensation for dismissal is giving rise to cases in which the damage caused by dismissals without cause is not duly compensated. This problem has been recognized by our own courts.
There have been, for example, cases in which a worker moves from Argentina to Spain to assume a new job and is fired without legal cause within a few months, receiving minimal compensation in accordance with internal regulations. Likewise, there have been situations in which an employee abandons an indefinite contract to move to a temporary duration of one year and says goodbye, in the new company, a month alleging “error” in hiring. In both cases, the damages suffered have been relevant, but compensation for the damages suffered are clearly insufficient.
These scenarios question that the compensation established, at least in these cases, can be considered “adequate.” It is difficult to justify that, if these same facts occur between companies or individuals, compensation (civil) for damages could be complete, while in the field of labor law, it is limited with a maximum compensation to the worker’s detriment. Consequently, it seems unreasonable to continue arguing that the labor protection system itself ends up acting against those who should protect.
In short, the Supreme Court is right when it pointed out, in the first legwhich “corresponds to internal laws to determine adequate compensation.” However, it is no less true that the courts are responsible for, through the control of conventionality, to check if the State has done so and, if not directly apply the international norm: that is, to allow adequate compensation in that specific case in which the appraised compensation is not.
Whoever reads me usually knows that it is in favor of being the legislator who solves the problems, without loading on the shoulders of the courts that do not correspond to him. However, in the present case I believe that there is regulations that allow (if not “forces” since it does not correspond to me to decide) to give a solution to these particular injustices.
