Understanding Employment Law: Contract Termination and Rights
FIRST BLOCK: THE WORKING BREECH OF CONTRACT.
COURSE A: D. Antonio Pile has served with the professional status of dependent youth apparel company Grapefruit Clothes SA since January 1, 1999. The workplace was the store under the name Shop Grapefruit located on San Juan Vol. 1 of Cadiz. On July 26, 2004, the company sent the employee a letter worded as follows: “In accordance with the provisions of Article 52 of Royal Decree 1/1995 of the Statute of Workers, you are hereby notified that with today’s date, your employment with the company shall be terminated for economic reasons. Our decision follows the continued decline in sales and the lack of production and performance of both your status and your workplace, which, combined with the severe imbalance of assets and financial status of the company, makes it materially uneconomical and unviable for the maintenance of both. We hereby offer compensation of 20 days per year of service, with a maximum of 12 months. This amount will be paid in full within fifteen days from today, at the registered office of the company.” On October 14, 2004, Grapefruit Clothes SA and the legal representative of Papaya Young SL signed a lease for the local business that used to work only for employee Antonio Wick as fixed. The seventh clause of the contract states that the lessee agrees to maintain the previous use of the premises, which consisted of selling clothing and fashion accessories supplied by juvenile Grapefruit, the parent company, from Taiwan. On October 18, 2004, when Antonio Wick heard of the reopening of the store “Grapefruit Shop,” he asked to join his former position or to receive compensation for unfair dismissal. The next day, the actor showed up for work, and the legal representative of Papaya Young SL told him he would not let him go because she had never worked for him, but he could go as a client. Antonio Wick submitted an application before the court for dismissal on October 27, 2004.
1. Do you have such demand likely to succeed?: In this case, the focus of the debate revolves around the continuity of business, being necessary to determine whether the employment relationship of Antonio Wick concluded or not with the decision to close the store Grapefruit Shop by his employer, given the fact that in this case there was the reopening of a new center dedicated to the same activity, and the facts show that despite a change of business ownership, it remained. In this sense, the law refers to two types of business succession: a) “mortis causa” (Art. 49.1.g) ET) and b) for acts “inter vivos” (Articles 44 and 51.11 ET), having in the latter case to distinguish between total estate firm (“change of ownership of the company”) and partial sequences of enterprise (“change of ownership of the workplace or an independent production unit”). Thus, while the “company” would be the highest object of transmission, the “independent production unit” could be the object of the minimum transmission. In particular, succession is deemed to occur when the transmission of the company affects an economic entity that retains its identity, meaning “an organized grouping of resources to carry out an economic activity, central or ancillary” (Article 44.2 ET). Thus, for implementing the mechanism of subrogation, the existence of a production unit is required, and that this functions or functions “autonomously.” It is ultimately the minimum object whose transmission causes the subrogation for legal purposes and comes to identify with the infrastructure of organized elements with productivity. In this respect, we can refer to the Court of Justice (ECJ), which enacted the interpretation of Directive 77/187/EEC for the approximation of the laws of the Member States relating to the safeguarding of the rights of workers in the event of transfers of undertakings, businesses, or parts of undertakings or businesses, which was subsequently replaced by Directive 2001/23/EC of the same title. The implementation of Directive 2001/23/EC requires basic conditions that have “identity” in the “economic entity” subject to exploitation, irrespective of any change of ownership, and that the transfer concerns a stable economic entity, whose activity is not limited to performing one specific work. In our case, when determining the existence of a transfer in the case brought into existence, a number of factors must be met: (a) a transfer of material has occurred, (b) customers have been transmitted, and (c) the activities carried on before and after the transmission are identical. So not only does continuity of business take place, but the tenant is subject to the obligation to sell the same products as its predecessor. In this sense, we must bear in mind that legal mechanisms can be used to convey a company are numerous, whether bargaining mechanisms of voluntary nature (sales contracts, leasing company, transfers, exchanges, etc.) or through mechanisms such as mandatory judicial sale in an executive process or administrative concession. In this specific case, it is noteworthy that not only is the location transmitted, but also other elements of the company (local media), that is, the business itself. So what has happened is a change in ownership or transfer of business referred to in Art. 44 of ET. As is apparent from the description of events, in addition to the assignment of the premises, the same is installed as a youth fashion store, which could be exploited from the moment of signing the agreement; the tenant must therefore maintain the previous use of the local, as being also subject to the supplier of goods to be sold, in this case, the parent company and the lessor. This being so, it is clear that what was given was an independent production unit, i.e., a company, without any obstacle that title is a lease, as established in the Supreme Court Decision on unification of doctrine on December 12, 2002. So there is no doubt that we have a business whose ownership is transferred under the terms of Directive 2001/23/EC and Art. 44 of ET, since the loan was an economic entity with its own identity as a set of organized media. Under both rules, the existence of a succession of the company determines that the employment relationship is not extinguished, leaving the entrepreneur subrogated to the rights and obligations of the former. That is why the dismissal occurs when the new employer expressly denies the continuance of the bond and its obligation to subrogation.
2. Is the action of the employee expired?: In accordance with paragraph 3 of Article 59 ET, the exercise of the dismissal action will expire on the twentieth day following that on which it would have occurred. In this case, the redundancy is produced on July 26, 2006, while the demand is on October 18 of that year. However, it works from the existence of an estate or business continuity, which brings, in his view, the new employer obligations, meaning the refusal to reinstate dismissal when activity is resumed. In this regard, the Supreme Court has understood that to operate the securities provided for in Art. 44 of the Statute of Workers, it is required, except in cases of proven fraud, in the judgments of May 11, 1987, July 24, 1995, and January 20, 1997, that labor contracts remain in force and have not been extinguished validly. Indeed, very often the demise of a company and the appearance of another dedicated to the same or similar activity, in the same premises and/or using the same hardware and suppliers or customers. In these cases, it follows, as we advance, that the company has been transferred and that there is continuity of the company, whichever applies the provisions of Art. 44 of ET over the earlier workers, in terms of what passed in the Supreme Court Decision of November 28, 1997. The case law provides that if the contract is extinguished prior to the occurrence of transmission but there is fraud accredited, the guarantee in Article 44 of the Statute of Workers operates. This implies that in order to implement that provision, and for it to be effective, requires that the exercise period of the action is brought, even if it is the action of dismissal, should begin to run from the day on which the transmission occurs and not from the day that the employment contract became extinct. The arguments for this conclusion are drawn, first, from the doctrine that “conversely is extracted from the Supreme Court Decision of July 16, 2003, which clearly gives different treatment to cases where there is fraud accredited and those in which such fraud does not occur. Secondly, that the security set out in Article 44 ET is ineffective when computing the “dies a quo” of the action of dismissal from the date of termination of the contract and not from the date on which the transmission occurs because, given the brevity of the exercise period of such action, the employer would be transferring him enough to wait twenty days from the dismissal of a worker to externalize the transaction of business (which in all probability have been made before, on the date on which even the employee could claim against dismissal), thus avoiding the application of the guarantees of Article 44 ET, as referenced in the Sentence of the Court of Castile and Leon on February 14, 2005. Third, it should be noted as provided in Article 1969 of the Civil Code which states that ‘dies a quo for the calculation of time is counted from the day that the action could be exercised.’ In this way, it would run counter to effective judicial protection, proclaimed by Article 24 of the Constitution, to understand that the limitation period for dismissal of the action must begin to run from when it occurs and not since then it performs the act of transfer of the business, committed fraud law, and against which the worker could no longer operate if they understand that the day of reckoning has to be fixed at the date of termination of the contract and not the date of transmission. Finally, you cannot require the worker to challenge a dismissal target that is apparently set to right, raising the potential illegality of it at a later time, when the transmission is externalized business, from which time has in computing the term. Certainly, in the course of law raised, we can see that the obligation to the tenant of continuing to use the premises, under the same terms and conditions of the pre-existing lease, is an essential condition, remaining for the entire duration of the lease. It is also relevant to the proximity between the closing of the store and the car back the same, the fact that the latter is engaged in the same activity as the above, that such activity is closely related to the activity of the lessor and unfolds in an intimate and quasi-dependent relationship with it, it is the leasing company that provides products to market. Therefore, it is understood that the security provided for in Article 44 of the Workers’ Statute operates and, in accordance with the foregoing, the limitation period for dismissal of the action must begin to run from the transmission of firms, so that the action of dismissal is not expired.
SCENARIO B: On October 23, 2003, the company and the Committee Pinneapple SA Intercentros signed a pact to proceed with the implementation of the Virtual Office, which will bring a new operational business management aimed at optimizing the organization of resources favoring the company’s competitive position in the market. Specifically, after the entry into force of the trade pact, all staff will perform administrative functions from their own homes that they previously carried out in the workplace. The staff affected by the change is therefore the sales staff who developed most of their day through contacts with clients outside the workplace, doing only administrative work in the center. The furniture, computer and telephone equipment, and any other equipment necessary for the development of their job functions at home will be supplied by the company, which will be responsible for maintenance.
1. Is the content of such a pact can be considered a substantial change in working conditions? The agreement between the company and the committee intercentre Pinneapple establishes the obligation to provide work at home for workers, specifically to perform administrative work at home with “computer and telephone equipment” that has been supplied by the company. In this regard, as highlighted in similar circumstances in the Supreme Court Decision of April 11, 2005, that component of providing work (administrative work) is going to happen to lend under a telework agreement with the provisions of Section 2 of the European Framework Agreement on Telework, which is “a form of organization and/or completion of work, with the use of information technologies within the framework of a contract or an employment relationship in which a work which could also be made on the premises of the employer, takes place outside those premises on a regular basis.” Teleworking is not necessarily due to ground under the home work contract-regulated in Article 13 ET, under which will be considered a contract of employment to address that in the provision of work activity takes place at the home of the worker or place freely chosen by the employer-unguarded because telecommuting can be provided in a place not elected by the employee and other than their home and also because there may be forms of teleworking in the surveillance business there (some demonstrations of work “online”). However, there are ways that fit the telecommuting model home work and this of course raised the case, for at that no mention of the existence of specific techniques of computer control of providing work. In this sense, in this case, what occurs is a partial change of contractual arrangements, for at least part of the work activity will be “home” and unsupervised by the employer. This change is only partial since personnel change is affected by sales staff, developing their commercial work through contacts with clients outside the workplace, changing only how to develop administrative work done in passing home workers, and in the case of a sales staff, administrative work is complementary to the principal service on a commercial basis. This distortion of labor supply exceeds the scope of the changes in Article 41 of the Statute of Workers, because this rule refers to the substantial changes occurring in the context of a particular contract for work but not to such conditions as may determine contractual regime change, as shown, for example, the rule of paragraph d) of Article 12 of the Workers’ Statute for the part-time contract. In fact, Article 41 of the Workers’ Statute applies to working conditions, understood as aspects of the implementation of the provision of work and its tradeoffs, but that do not meet the conditions of employment that are projected onto the configuration of the employment relationship and its vicissitudes. Consequently, besides the displacement of the place of contract performance in the workplace to the home worker business, said alteration of the service has other implications for the field site personnel, not only exceeding the scope of Article 41 of the Statute of Workers, but from the available power of collective autonomy, which cannot affect the sphere of personal privacy of the worker, because when it becomes the home instead of work, it is forcing the worker to make available to the employer something more than the work force, because it becomes a workplace, rather than production, the very space where it develops the privacy of the worker and this not only adds costs, which may remain unpaid, as in the case you have to devote to the work sites previously used for other family uses but can also have consequences for other positions in the coexistence in the home or the employee’s personal life, which should be excluded from unilateral changes Article 41 of the Statute of Workers.
2. Can the employer impose the sales of the new operational management?: The decisions of collective autonomy, which must operate on the materials of nature and labor, have no power to affect the area of workers’ privacy, as established in the Judgments of the Supreme Court of April 11, 2000, April 30, 2002, and October 20, 2004. The purpose of the agreement between the company and the committee intercentre Pinneapple therefore exceeds what can be regulated by free agreement between two parties, thus proving that no binding agreement for the workers to whom it is referred. This is recognized by the European Framework Agreement on telework as in point 3 stresses the voluntary nature of work and provides that “if telework is not part of the initial description of the job and the employer makes an offer telecommuting, the worker can accept or reject the offer,” adding that “if an employee wishes to opt to telework, the employer may accept or reject the request.” It is true that the agreement does not apply in our system yet, since its publication as an annex of the national agreement for Collective Bargaining is not equivalent to a reception at law through collective bargaining, to have mentioned only one effective national agreement obligational for the signatory parties in order to respect the guidelines and criteria to be followed in negotiations, and in this regard, the undersigned organizations and trade unions only undertake “to promote the adjustment and development” of the European Framework Agreement “to Spanish reality. But the voluntary worker for the acceptance of teleworking at home in our law is derived from what is stated in Articles 1091, 1204, and 1256 of the Civil Code in connection with what has been indicated on the inability to use this material in the path of Article 41 of the Workers’ Statute and the applicable regulatory limits to collective autonomy, which cannot enter to regulate matters affecting the personal sphere of workers.
BLOCK TWO: THE TERMINATION OF EMPLOYMENT CONTRACT.
ASSUMPTION C: The worker Ana Lozano has been providing her services for the company Subcontracting SA since April 12, 2002, dedicated to the management of properties in the Costa Brava. The employment contract signed by the parties was a fixed-term work or service contract. The contract and specifically the 1st amendment, expressly agreed that it would cause the extinction of the labor contract resolution, completion, or termination, for whatever reason, the lease management service of luxury apartments on the seafront of Cadaqués, existing between the SL and Subcontracting Estate Managers SA, and performance of which has concluded that a formal contract. Subsequently, the defendant informed the plaintiffs by letter dated October 11, 2006, in which he was informed that in exercise of the option provided for in the resolutory 1st amendment of the contract, their employment was finalized due to the resolution of lease services from your business with SL Managers Managers Ltd. The following month, a new lease management services for these luxury apartments was signed with a new company, Holidays SL Corporation.
1. Can it be considered a valid cause for termination of the contract entered by worker Ana Lozano?: In our employment law, the general rule is the contract of indefinite duration, a bankruptcy rule that only in cases provided for therein, such as temporary contracts to perform any work or services that are entrusted to the employer for some time unknown but outside of its normal or in addition to. The concept of work or service has been understood in its generic sense and amplitude, which has led to the conclusion that it is this type of contract where the company has a limited need for temporary workers and specifically defined at the time of hiring, conditions known to parties who know that there is a time limit for the development of an identifiable activity itself. This shows us that this is a contract whose duration depends on the implementation of the “work” that motivates it, which suggests that we have an obligation to run on the only fact we know that the future of which depends on its subsistence necessarily occur, what distinguishes a conditional obligation, which is ignored if the condition is fulfilled. It is thus appropriate to recall that the distinction between theory civilian term obligations and certain undetermined. In the first term, it is known to be met, and when, as the term “an certus et certus quando,” while in the second term, it is known to arrive but is ignored when, being “an inciertus certus quando.” In the specific case raised, we have a temporary contract whose duration depends on a qualifying period that normally is indeterminate, which means that at the time of signing the contract, it is known to be of limited duration, but it is ignored when it extinguished, as this will depend on the implementation of the order received from a third party and the will of this, if they decide to maintain or renew their request. In this sense, this is a temporary contract in which the duration depends on the expiration, the execution of the work or service, and not to a contract subject to conditions precedent because, which follows from Article 1125 of the Civil Code, when the future event to which the subsistence of the contract is true, but it is not known when it will arrive, we have a term (decisional), while production is uncertain whether the fact that we will terminate the contract with a condition (resolutory). That Article 15-1-a) ET establishes a decisional term contract subject to the evidence which govern a contract subject to a certain time limit, although its specific duration is uncertain. And it confirms the fact that such temporary employment is permitted only in response to the contracting company’s needs for temporary workers to meet a specific activity, determined and autonomous and substantively, reason for linking the duration of the contract to the continued need to be addressed to him. So in this type of contract, include decisional agreements on a fixed or indefinite period, depending on the circumstances of the work or service to run or the award obtained, thus resulting in a valid ground for terminating the contract contained in the working Anna Lozano. It should be noted, however, that it would not be possible for the contract to determine that case there is still the decisional term temporary need for employees, i.e., if extinguished earlier, it subscribes to a new contract with the same subject matter between the employer and the client company, for this would not be a valid cause for termination of the contract of work or service concluded with employees, according to the unified doctrine of the Supreme Court Sentences of June 17 and 18, 2008, who have come to rectify the criteria previously had. Indeed, when the contract or grant that motivates him is nova, renewed, or replaced by another later in which the object remains the same, no employment contract is terminated for failure after the agreed period for its duration: the execution of the work that motivates him and the disappearance of the temporary need for manpower required by the implementation of the “work or service” that the employer undertook to perform. However, that continuity in the provision of services between the two companies through subscription of new hires does not occur in cases brought here because the principal decided after the termination of the contract, to go to another company, Holidays Corporation Ltd., to give continuity to the management of buildings.
ASSUMPTION D: D. Ramon Marquez has been providing services to the company Blankets Montalbán SA since March 1, 2002, having started on July 2, 2005, unpaid leave. This work has been included among the workers who have been affected by the decision of March 2, 2006, by the Valencia Provincial Delegation of the Ministry of Labor, which authorized the termination of the labor relations of such workers, attending to technical and economic causes, “provided that no time frame has passed for the grant of the leave was not sought reinstatement and therefore there is at least one expectant right of reentry. However, to date, the company has not paid D. Ramon Marquez compensation. The employee filed a complaint before the Court on March 12, 2006, claiming compensation.
1. To what extent does conditional voluntary status affect their right to compensation for the termination of his contract?: The situation is voluntary excess of their own volition who has separated from the firm and who our right, for that reason, does not recognize the right to rejoin the company upon the expiration of the period of leave but only the expectation to be readmitted and only in the event that the company at the time of the request would put the same or similar category (Article 46 ET). In this situation, it is considered that the worker really does not lose their jobs when the company ceases employment relationships with its employees by any of the causes for the collective dismissal as provided in Art. 51 of ET, since the deletion of that expectation is not equivalent to the loss of a job which is what we want to compensate the aforementioned provision. This jurisprudence has been collected in the judgments of the Supreme Court of October 25, 2000, October 26, 2006, November 13, 2006, November 29, 2006, January 19, 2007, and January 31, 2008, in which it contemplates a situation similar to that raised in this case and in which, after highlighting the difference between voluntary and forced leave and the precarious situation in which our rights as the employee is on unpaid leave, it was reached the conclusion that the employee in a company over which extinguishes the working relationship with all its employees cannot be recognized that compensation for the purpose of compensation for dismissal provided in Art. ET is the 51.8 of workers’ compensation for damage resulting from the loss of their jobs and livelihoods that their performance gives the worker. This damage occurs when the worker is providing services effectively, or when to retain the right subject to suspension after a hiatus since, but does not exist or at least not comparable to earlier, when the employee’s right is only a right of reentry “expectant,” where the occupation of the job is conditional upon the existence of vacancies, thus taking no worker Ramon Marquez entitled to such compensation, in accordance with the terms expressed in the aforementioned case.