The objective dismissal due to closure can be qualified as justified.

The objective dismissal due to closure can be qualified as justified.

According to our Labour Lawyers at the Law Firm in Madrid, the objective dismissal due to the closure of the centre, even if the company has other workplaces where the worker can be located, is considered fair.

According to the judgment of the Supreme Court, Labour Division, of 21 December 2012. In both cases, the respective workplaces in which each of the plaintiffs provided services were closed for unforeseeable reasons beyond the employer's control, and the employment contracts were terminated for organisational reasons. In both cases, the employer has other work centres in the same city, which are in operation, and has not relocated the worker to either of those centres. The judgment under appeal considers that the dismissal is fair, and that the relocation of the worker is not required; the contrasting judgment considers that the dismissal is unfair since, as the company owns three other centres, it was able to employ the plaintiff in them.

THIRD.- ...It is true that this Chamber, in its judgement of 29 November 2010, appeal 387/09 , held that the dismissal of the plaintiff's job for organisational reasons - he provided services in a space in the Sants railway station, leased by ADIF to the company Global Game Machine Corporation SA, dedicated to the activity of gaming machines - was not justified due to the fact that ADIF terminated the lease contract for said premises, taking into account the special circumstances that existed, such as the fact that on the same dates of dismissal the company had carried out numerous hirings.

The judgement states: "Article 52.c ET subordinates the termination decision, as we said, to the "need ... to amortize", in such a way that the company's dismissal was not necessary. of amortisation", so that the measure contributes to "overcoming the difficulties" of the company, and these - as we pointed out above - can only be invoked effectively when they cannot be overcome with another "rational measure" in order to achieve productive efficiency and - for this reason - are not simply a means to increase "company profits". Well, this doctrine makes it very difficult to justify the "need to amortise" a certain job when - as in the case in question - there are numerous vacancies in the same company or other jobs are going to be created, and simultaneously or subsequently they are to be filled by hiring new workers.

"The judgement continues: "It is therefore clear that in the case in question the problem - the company's difficulties - is not transferred from one work centre to another, because although the company was not obliged ex lege to seek the necessary accommodation for the worker concerned, what we do state is that in the present case priority must be given to transfer [voluntary for the worker] rather than the massive hiring of outside workers. And although this obligation - to transfer, rather than hire - does not appear expressly in the law, we understand that it can be inferred from its own text, given that it speaks of "overcoming the difficulties that impede the proper functioning of the company" and in any case it is a consequence of the jurisprudential interpretation of the rationality of the measure to be adopted, which - as we said - is absent in a case as singular as the present one.

"In the case under consideration, it is not appropriate to apply the solution set out in the latter judgment, which explicitly points out the singular circumstances of the case under consideration, since, unlike what happened in that judgment, in the case now under consideration there is no evidence that the company made massive recruitments at the same time as or after the objective dismissal of the plaintiff, nor that it had vacancies in other workplaces.

It is therefore appropriate, in application of the Chamber's traditional doctrine, as set out in the judgments cited above, to declare the dismissal of the plaintiff to be lawful, since the organisational cause invoked by the company - closure of the work centre due to the closure of the shopping centre in which it is located because the lessor is in insolvency proceedings and the commercial court has ordered the cessation of the lessor's business activity - is present and occurs in the specific area of the work centre in which the worker provides her services. Since the judgment under appeal has so held, the appeal must be dismissed.

Source: G.Elias y Muñoz Abogados Madrid