Dismissal of a member of the company committee

The TSJ Las Palmas declares that if it is proven that the dismissal has occurred as a reprisal to the union activity of his / her sentimental partner, the dismissal is classified as null, since there has been discrimination by association or association.

The company, a hotel complex, informs the worker that she had made the decision to dismiss her disciplinarily due to a continuous and voluntary decrease in normal work performance, recognizing, subsequently, the inadmissibility of dismissal by paying the corresponding compensation.

In the same company, the sentimental couple of the dismissed worker, who was part of the company committee, and who as secretary of the same had made several complaints before the ITSS for certain business breaches.

Before the dismissal, the worker files a lawsuit requesting that the nullity be declared for violation of the fundamental right to non-discrimination. The social court estimates the demand and condemns the company to reinstate the worker and to pay compensation for the violation of the right of € 6,251. Disagreeable, the company files an appeal against the Supreme Court.

The TSJ recalls that when a worker alleges the violation of a fundamental right, he must previously prove sufficient evidence of the existence of discrimination. Once this probative result has been achieved, the burden of proof is reversed, and the company must prove that the motivating facts of the decision adopted, in this case the dismissal, are legitimate or, even without justifying their legality, are alien to everything Mobile attentive to fundamental rights.

In the case prosecuted, it is clearly evidenced that there is an indicative scenario of violation of the right to non-discrimination, which comes from the association with the union activity carried out by your partner, and that is also enshrined with the guarantee of indemnity that by association or association extends to the worker, for being a sentimental couple of the social representative who showed a great union activism in the defense of the rights of the workers of the company and their own labor rights.

At this point, the TSJ recalls the figure of discrimination based on association or association, coined by the CJEU (Coleman case) and that consists of a transfer that is transferred or reflects that a person linked to another who belongs to a vulnerable, or susceptible group of discrimination, in the supposed case the union and judicial activity in front of the company of your partner.

Therefore it has occurred is a reprisal translation to the couple who was really an annoying person for the company.