In accordance with art. 49 The Statute of Workers is divided into two modalities of termination of the contract by the will of the worker: termination of the contract without just cause, and with just cause. The employment contract may be terminated, in accordance with the wording of art. 49.1 j) Statute of the Workers, "by the will of the worker based on a contractual breach of the employer".
It is a faculty of the worker against certain business conduct that makes the employment relationship unfeasible, establishing the rule a double requirement:
1) the breach of the employer must be serious and guilty;
2) a series of "just" causes are established, which must support the will to terminate the contract. Although the resolutory causes included in art. 50.1 ET are not exhaustive or closed.
The wording of art. 50.1 states in its letter
a) termination when the employer has proceeded to apply to the worker substantial modifications in the working conditions that result in prejudice to his professional training or in impairment of his dignity.
b) that it will be just cause that refers to non-payment or continued delays in the payment of the agreed salary.
c) a clause that allows termination when there is any other serious breach of its obligations by the employer, except in cases of force majeure. Being this section the pleasable cause that can include any other reason not listed by law.
The doctrine has developed the following criteria for the interpretation of the terms used by law:
a) “contractual” non-compliance, that is, referring to the scope of the employment relationship, non-compliance that may arise not only from the obligations agreed in the employment contract, but also from those regulated in a collective agreement;
b) “serious”, in the sense that it causes harm to the worker that makes the continuation of the employment relationship reasonably impossible;
c) "guilty", in the well understood that the action is attributable in some way to the employer, leaving out the breaches due to force majeure.
In return, articles 54, 55 and 56 of the Workers' Statute regulate disciplinary dismissal, and there must be serious and guilty breach by the worker, in relation to:
1) Repeated and unjustified absences of attendance or punctuality at work by the worker;
2) Indiscipline or disobedience at work;
3) Verbal or physical offenses against the employer or the people who work in the company or the relatives who live with them;
4) The breach of contractual good faith, as well as the abuse of confidence in the performance of work;
5) The voluntary and continuous decrease in the performance of normal or agreed work;
6) habitual drunkenness or drug addiction if they have a negative impact on work;
7) Harassment of the employer or other workers.
Often, there are breaches by both the worker and the employer, indistinctly and with greater or lesser severity (being useful, to be able to prove it in the future, to inform the breach of the existence of a breach).
Suppose a worker files a reconciliation ballot for non-compliance by the employer. Faced with this situation, the businessman files an independent ballot for disciplinary dismissal.
Will the Instance Judge know two actions?
Normally it is not allowed to accumulate other shares to the dismissal demand, nor is it possible to accumulate shares to the demand for termination of contract for breach of the employer. Well, in this case (dismissal-extinction) the accumulation of processes or orders is allowed, and the Social Judge must know both actions. All this is based on, as stated in the Judgment of the Superior Court of Justice of Extremadura, Social Chamber, Judgment of Dec. 29, 2003, as follows:
"The worker who urges the judicial termination of his contract and, before receiving a final judgment, the employer dismisses him, or that, after the worker has requested and obtained the extinctive judicial resolution, it is appealed by the employer before which the Worker tries to return to work and, when it fails, file a dismissal lawsuit.
The different treatment of both lawsuits and their non-coincident solution in time posed delicate problems of lack of coordination, of possible contradictions in the resolutions; and even possible concurrences of compensation, etc. Furthermore, this differentiated treatment could give rise to acts of torture such as the exercise of the decisive action to avoid the consequences of an imminent dismissal, or as the dismissal intended to undermine the decisive action. ”
It should also be noted that the Social Judge is not obliged to fail by resolving the actions in a certain order, but must be aware of each and every one of the actions proposed.
Finally expose a section of the judgment of the Supreme Court, Sect Chamber, of the social, Judgment of May 6, 1988:
“… This Chamber already alluded in its judgment of October 16 to the broad concept that consistency must have in the labor process, in view of the special nature of the worker's right, which means that the Magistrate cannot be bound by the limits of the requests of the parties, having to recognize the effects that the norm imposes, even if they had not been intended in the lawsuit or in the trial. ”
