The absence of collective agreement applicable does not deprive the company of applying its sanctioning power via status of workers, but before commenting on this legal loophole, we are going to review the concepts that orbit the sanctioning regime.
Disciplinary regime in collective agreements
The disciplinary power of the company is not unlimited and must respect, among others, the principles of typicality of the offense and legality of the sanction, without it being possible to impose sanctions other than those existing in legal provisions or collective agreements.
Normally, all collective agreements collect several articles in which they develop the Disciplinary regime, and indicate what is considered a minor, serious or very serious offense, and must prove not only the performance of the conduct of action or omission, but also that such conduct is previously classified and is deserving of the sanction imposed.
Any fault committed by the worker can be punished with a written warning, going for a suspension of employment and salary - up to 60 days -, or a disciplinary dismissal; The choice of sanction will depend on the degree of the offense (a robbery will not be the same as an argument or arriving five minutes late).
Article 54 of the Workers' Statute
On the other hand, we find the article 54 of the Workers' Statute where the development is disciplinary dismissalor -not written reprimands or suspensions of employment and salary-, considering contractual breaches:
a) Repeated and unjustified absences of attendance or punctuality at work.
b) Indiscipline or disobedience at work. N.T.
c) Verbal or physical offenses to the employer or to the people who work in the company or to family members who live with them.
d) The violation of contractual good faith, as well as the abuse of trust in the performance of work.
e) The continued and voluntary decrease in normal or agreed work performance.
f) Habitual drunkenness or drug addiction if it has a negative impact on work. N.T.
g) Harassment based on racial or ethnic origin, religion or beliefs, disability, age or sexual orientation and sexual or gender-based harassment of the employer or people who work in the company.
Therefore, to sanction in those companies in which there IS an applicable collective agreement, we find two rules of application -Collective Agreement and the Workers' Statute-.
- In the event of dismissal, we can refer to both article 54 of the Statute and the sanctioning regime of the applicable collective agreement.
- In the event of a written reprimand or suspension of employment and salary, we can only refer to the collective agreement (remember that the ET does not have a development on the matter itself).
To sanction in those companies in which there is NO collective agreement (or that, even if we have a collective agreement, but there is no disciplinary regime), we can only apply the Workers' Statute.
- In the event of dismissal, we can only refer to article 54 of the ET.
- In case of written reprimand or suspension of employment and salary
What happens in these cases?
In the absence of a collective norm, it will be necessary to base the employment and salary sanction on the contractual breaches specified for the dismissal of article 54 of the Workers' Statute. Therefore, any suspension of employment and salary must be framed in one of the sections of 54, otherwise, we will not comply with the principle of typicality and it would not be possible to sanction. It is true that section “d” of art. 54 (violation of good faith) gives enough room to frame all types of infractions.
The Superior Court of Justice of the Basque Country (TSJPV), in its ruling of June 18, 2019, confirmed the decision to sanction by a company by relying on the communication of dismissal on article 54.2. of the ET, without pointing out the precept of the Collective Agreement.
Without prejudice to all of the above, there are collective agreements in which a procedure prior to dismissal called “hearing procedure” or “consultation procedure” is established, and whose purpose is that the worker has the opportunity to be heard prior to the decision of the sanction that is intended to be imposed and give reasons with which to reconsider the origin of the punitive measure. This procedure includes deadlines for allegations, place of presentations, and even an instructor.
Finally, remember that both faults serious as well as very serious ones must be communicated to the legal representatives of workersis, in your case.
