MSCT: the change in pay is not enough to terminate the contract

The TS considers the business appeal and revokes the judgment of instance because when it comes to a remuneration reduction, the existence of damage is difficult to deny. Thus, whoever urges the termination of his contract after a substantial modification of working conditions (MSCT) that affects the remuneration amount must prove that he suffers a loss, without a reduction of around 5%, with certain compensations and possibilities of reversal, can be considered quite to the effect.

The issue discussed is the right to receive the legal compensation (art. 41.3 ET) provided for cases of causal resolution as a result of the damage experienced after a substantial modification of working conditions (MSCT) that comes to extend the previous one. There has been a pay reduction and the worker, after months of enduring it and after prompting the resolution action, requests a voluntary leave of absence.

The worker’s demand does not question the entity of the change, its causes, or the procedure. Assuming its adjustment to the Law, it has limited itself to demanding that the Court recognize the right to terminate the contract and to be compensated in the terms of art. 43.1 ET. Correspondingly, it has not activated the procedural modality to challenge these contractual changes, but rather an ordinary procedure.

The Chamber understands that if the legislator had wanted all MSCT to include the right that the affected persons could terminate their contract with the right to receive the compensation set forth and access the legal situation of unemployment, they should have drawn up art. 41.3 ET in other terms.

In it there is no automatism, but rather the subordination of the typified faculty to the concurrence of an additional circumstance to that of having introduced a relevant change in the employment conditions. That the affected subject “was harmed” means that the one (introduction of an MSCT affecting remuneration) does not entail the other (harm). The reality has shown cases of alteration of the remuneration system (for example, method to satisfy commissions) without unfavorable consequences for certain workers.

When it comes to a salary reduction (MSCT’s prototypical assumption in the matter), the existence of damage is difficult to deny.What our doctrine has done, to which we must apply for the reasons set out, is to identify those unfavorable consequences (from the perspective of article 41.3) with those of a certain substance.

The doctrine has tried to give meaning and coherence to this regulation, extracting the logical consequences of the rules on evidentiary burden (whoever urges the resolution and affirms its damage is the one who must prove it, because we lack a legal presumption of harmfulness of the MSCT) and placing In an imprecise percentage bar around five / seven percent the limit of what is considered to constitute damage.

And in the present case, the reduction is accompanied by several circumstances that mitigate its damage:

1st) It only affects the fixed part of the remuneration.

2nd) There are recovery clauses related to the running of the company.

3º) There are rules on renegotiation of the salary reduction for the hypothesis of reduction of the taxes in charge of the company.

4th) In case of objective dismissals, the legal compensation is improved and calculated on the salary without reduction.

Applying the above, the appeal is estimated, since whoever urges the termination of his contract after an MSCT that affects the remuneration amount must prove that he suffers a loss, without a reduction of around 5%, with certain compensations and possibilities of reversion , can be considered quite to the effect.