Sentence nº 576/2018 by the Supreme Court on May 30, 2018, analyses the following assumption of fact:
– There is a reduced level of production at a company and this decrease in the production level causes a reduction in the number of paid hours that the company can offer the employee.
– The company offers the worker to keep his job, but on a part-time not full-time basis.
– The worker rejects the company’s proposal and opposes reducing his number of working hours in this way.
– Then the company proceeds to dismiss the worker for objective reasons (organizational and productive ones).
– Once the dismissal has been executed, the company covers said vacancy by hiring a new employee for the part-time job which was previously rejected by the dismissed worker.
The aforementioned Supreme Court Judgment declares that said dismissal is fair, basing its decision on the following arguments:
– The company has provided objective evidence reliably demonstrating the existence of changes in the level of production that markedly reduced the content and needs of the company in relation to the employee’s job.
– The Labour laws do not allow the company to reduce the employee’s working day by unilateral decision or through the specific procedure of “substantial modification of working conditions” regulated in Article 41 of the Workers’ Statute.
– Consequently, the reduction of working hours can only be resolved through an agreement between both parties, which is precisely what the company intended to do by offering the employee a part-time job.
– The refusal by the employee to continue in a part-time job enables the company to execute objective dismissal, which must be deemed fair, to subsequently hire a new employee to cover the part-time job which was rejected by the employee who was dismissed.
– This new contract cannot be considered fraudulent and must be considered as a natural way of attending to the company’s newly reduced production needs.
We understand that this Supreme Court 576/2018 judgment is particularly interesting, since it breaks new ground and goes against the historical criterion that determined the inadmissibility of objective dismissal when the company hired a new employee in the circumstances described above.
