Compensation for breach of commitments agreed in collective dismissal

The TS declares that, in the event that the company is ordered to compensate for damages for failing to comply with the contracting obligations derived from the employment exchanges agreed upon in a collective dismissal and that are binding for it, it can not be deduced perceived by workers as unemployment benefits, because they were charged because of conduct of the company that was not in accordance with the law.

A company negotiates in the framework of a collective dismissal the creation of an employment exchange to which all the workers included forcibly in the collective dismissal could be ascribed and which established the obligation for the company to offer to the seconded personnel any vacancy that occurred. in the company before offering it to the labor market. The company offers an external worker a position according to the category and professional circumstances of one of the workers registered in the employment exchange.

The company is condemned to pay compensation for damages for the breach of the recruitment obligations of these workers registered in the employment exchange binding for the company. During the period in which they should have been hired, the worker received unemployment benefits.

A cassation appeal is filed for the unification of doctrine in order to determine if, of the compensation for damages and damages -corrected in the amount of wages that should have been received since the first vacancy occurred until the closing of the Stock Exchange- fixed in favor of the worker, due to the company’s failure to comply with one of the measures of the agreement reached in the collective bargaining negotiation period, -creation of said job board- the amount corresponding to the unemployment benefit that he / she has received must be deducted.

In this type of compensation for damages, it can not be deducted what is received by workers as unemployment benefits, because they were charged because of conduct of the company that was not in accordance with the law, in such a way that, deprive them of the occupation during that time, have experienced a double loss: on the one hand, they have been forced to request a benefit that otherwise would not have had to ask, and have consumed time of such benefit or subsidy, time that will see subtracted from others that may be entitled in the future; and on the other hand, that the corresponding perception during that time of the unemployment situation is quantitatively less than that which would have corresponded to them for the salary of which they were deprived by the behavior of the company.

The deduction of such benefits would be to assume that the company would be the true beneficiary of the same, to see reduced in this way the amount of compensation to whose payment was ordered, in charge, precisely, of what the worker received as unemployment benefit.

And regarding the unjust enrichment that, it is said, the workers would experience if the amounts received in unemployment were not deducted from their salaries, this would only take place if, in addition to the salary perception, the perceptions of the workers were definitely part of their patrimony. unemployment. But since these perceptions have become undue, because they are incompatible with work – and, consequently, with the salary corresponding to that work from which they were unduly deprived – what is applicable will be the return, to which end the fact must be put in knowledge of the SEPE.

STS Room 4 of April 4, 2019. EDJ 2019/578221