FOGASA’s liability in case of insolvency

The TS considers that the responsibility of FOGASA does not derive from the extinctive act or from the non-payment of salary, but rather the fact that causes it is business insolvency. And insolvency is understood to produce its effects from the moment of its primitive recognition, so that the subsequent proceedings, each requiring its own declaration of insolvency, to bring cause of the primitive, have no constitutive character for the requirement of the FOGASA’s responsibility more than in relation to the specific credit of the creditor, but not in its date according to the car in which it is reflected.

A worker saw her contract terminated on 05-13-2011 within the framework of an ERE, and by sentence of 5-11-2012 the company was sentenced to pay an amount in compensation and wages. On 13-3-2013 by decree, in execution the company was declared insolvent with respect to the amount owed to the worker and on a provisional basis, which indicated that the company had already been declared in a situation of provisional insolvency in Resolution issued on 8-6-2012. On 03-15-2013, the worker submitted a request for benefits to FOGASA.

An appeal is filed for the unification of doctrine in order to determine the date to be considered as a declaration of insolvency for the purposes of the amounts to be guaranteed by FOGASA, and its date of entry into force.

The responsibility of FOGASA does not derive from the extinctive act or salary non-payment, but the fact that causes it is business insolvency that causes the protection or guarantee that the legislator has established in favor of the workers and charged to this body.

The declaration of insolvency obtained in a labor court proceeding reveals the impossibility of the company to meet its obligations that, even if it occurs in a certain procedure and with respect to other specific performers, serves to assert it in other subsequent labor processes. that the existence of new goods is not established. Therefore, it is admissible to issue a decree of insolvency declaration in a process of labor execution without having to repeat more procedures than a possible hearing to the parties to record the inexistence of new assets.

In short, as long as there is no evidence of anything else, insolvency is understood to produce its effects from the moment of its initial recognition and, therefore, that, in these circumstances, subsequent proceedings, each of which requires its own declaration of insolvency, when bringing cause of the primitive, they do not have constitutive character for the requirement of the responsibility of the FOGASA more than in relation to the specific credit of the creditor but not in that of its date in function of the one of the car in which it is reflected.

STS Room 4 of April 10, 2019. EDJ 2019/592371