Payment of salaries to the worker in the event that a court decides to declare his/her dismissal unlawful
Right to job security
Prohibition on dismissal without just cause
Compensation as reparation for the loss of a worker’s job
RULING No. 284/11
7 of June of 2011
The constitutionally enshrined right to assured access to the law and the courts precludes the legislator from creating excessive, materially unjustified difficulties that would hinder the exercise of the right itself.
The fact that a Labour Code norm is interpreted to mean that the legislator opted to guarantee the payment of the worker’s salary until the court decision declaring his/her dismissal unlawful transits in rem judicatam does not provide grounds for saying that the resulting situation exceeds the limits imposed on the guarantee of access to the law and the courts. This interpretation is not invalidated if the worker opts to receive compensation based on length of service, rather than to be reinstated in his/her job. Inasmuch as this particular form of compensation is designed to provide reparation for the loss of the worker’s job, its purposes are different from those of ongoing remunerations.
The issue in this case was a Labour Code norm that was interpreted to mean that in the event of unlawful dismissal, if the worker chooses to receive compensation calculated on the basis of the length of time he/she has worked for the employer rather than to be reinstated in his/her job, he/she retains the right to receive his/her ongoing pay until the final decision transits in rem judicatam, and that this right to an ongoing salary does not cease on the date on which the worker actually makes that choice.
The appellant was the employer in the concrete case in question. It argued that this understanding was in breach of the employer’s fundamental right of access to the law, particularly with regard to the rights to bring suit and to fair process. It alleged that the obligation to pay an ongoing salary until transit in rem judicatam can last for a very long time due to facts for which the employer is not responsible, but which are caused by the slowness of the courts, and that this configures a limitation on its right of access to the law, which is imposed in favour of both the implementation of the worker’s fundamental right to job security and the prohibition on dismissal without just cause.
The appellant opined that the question of unconstitutionality should not be put in terms of a conflict between rights, but rather of the inherent limits on the fundamental right to job security, which does not encompass the payment of an ongoing salary after the labour contract has terminated.
The Constitutional Court considered that this argument was based on the thesis that the labour contract effectively ends on the date on which the court of first instance hands down its sentence – a thesis it considered to be manifestly unfounded.
The Court was of the view that the problem was indeed one of a conflict between two fundamental rights – the right of access to the law, and the right to job security – and that it was necessary to determine whether, when it weighed up the question, the legislator overstepped the bounds of its freedom to shape the law and disproportionately sacrificed the employer’s right of access to justice in favour of the worker’s right to job security.
The Court felt that the norm whose constitutionality it was reviewing is an expression of the right to work, whose negative aspect implies the right not to be deprived of work. This precept seeks to establish guarantees in relation to job security, which is rendered effective in the first place by the prohibition on dismissal without just cause.
The regime created by the challenged norm results from the understanding that the nullity of an act by which a worker is dismissed without just cause implies his/her right to retain his/her job and to be reinstated in it, and that he/she is therefore entitled to receive the remuneration of which he/she was deprived by the improper dismissal.
Regardless of the nature of the obligation to pay an ongoing salary, for the worker the amounts represented by the latter are a means of subsistence; this is due, for example, to the fact that the amount of any unemployment benefit the worker receives is deducted from the compensation he/she is awarded and the employer must pay it directly to the Social Security Service.
The guarantee that the ongoing salary is paid until the sentence transits in rem judicatam is intended to avoid a situation in which there is a vacuum in which certain interests are not protected during the time between the decisions of the various instances involved.
In the light of the fact that a worker’s salary is designed to provide him/her with a means of subsistence, the need to protect his/her interest in its continued payment is sufficient justification for the legislator’s choice.
The Court said that the employer’s payment of the worker’s ongoing salary until the date of the sentence of first instance was certainly not at issue; rather, what the appellant was alleging was that the interpretation under which, even if a worker opts for compensation based on length of service, he/she is still due an ongoing salary until that sentence transits in rem judicatam (a period of time that includes the duration of any appeal by the employer against the decision of first or second instance in which the dismissal is declared unlawful) was unconstitutional.
The appellant considered that having to pay such a salary, even when the worker had opted for compensation based on length of service, was in breach of its right of access to an appeal against the decision of first instance that declared the dismissal unlawful.
However, the Constitutional Court clarified that in addition to the rights to bring suit and to fair process, the right of access to the courts includes the right to appeal. An employer’s access to an appeal is not restricted by the fact that it can be ordered to pay an ongoing salary until the decision of first instance transits in rem judicatam. Indeed, at the end of the day this payment is only due if the appeal court does not uphold the employer’s position and confirms the decision in which the court of first instance deemed the dismissal unlawful, in which case payment of the ongoing salary is a consequence of the unlawfulness from which the dismissal suffered ab initio. If, on the other hand, the employer’s arguments convince the appellate court, its final material position will not suffer as a result of lodging the appeal. The Court accepted that the employer might be dissuaded from bringing an appeal by the uncertainty of the outcome and the real possibility that an unfavourable decision might harm its material position; however, the hypothetical losses that the employer might incur are not directly derived from the exercise of the right to appeal, but from the delay in securing a final sentence. This is an element which the interested party must weigh up when it comes to freely exercise its rights and freely choose between the available options. In addition, in the new Code of Procedure in the Labour Courts the legislator created a mechanism that is designed to obviate the loss suffered by employers, by making the state jointly liable for any payments. This provision requires a court that declares a dismissal unlawful to include in its decision of first instance an order whereby, if twelve months have passed since the form on which the worker declared that he/she opposed his/her dismissal was filed and the parties have not yet been notified of the decision of first instance, it is the competent entity in the social security area that must thenceforth pay the remunerations owed to the worker.
The Constitutional Court held that all this meant that the restriction on the right to appeal invoked by the employer did not exist. The Court pointed out that even if one were to feel that the solution adopted by the legislator includes a restriction on the right of access to justice, the solution would still have to be seen as constitutional, not only because the norm is intended to protect other constitutionally enshrined rights – the rights to job security and to work – but also because under the then current regime governing the prohibition of unlawful dismissal, that restriction was needed in order to safeguard those rights. The opposite solution would leave the worker unprotected, in that he/she would be deprived of an income by the fact that the employer had decided to appeal against the decision of first instance. If in this solution the employer is prejudiced by a fact for which it is not responsible – the excessive duration of the judicial process – the same thing can be said of the worker in the opposite solution. When it opted to protect the weaker party in the labour relationship – the solution that is also legitimated by the jurisprudence of the European Court of Human Rights – the legislator thus did not exceed the margin within which it is entitled to weigh up the interests in play.
See Rulings nos. 207/09 (29-04-2009), 502/96 (20-03-1996), European Court of Human Rights, Martinez v. Spain, decision of 4 September 1989, ref. no. 13012/87.