What penalty lower than the dismissal can be imposed if there is no applicable collective agreement?

The TSJ Basque Country understands that the absence of applicable collective agreement does not deprive the company of its sanctioning power that can be exercised in accordance with the ET, being able to impose a penalty of suspension of employment and salary, instead of the penalty of dismissal for transgression of contractual good faith in the face of serious breaches of the worker.

A company decides to disciplinarily sanction its worker in accordance with the articles of the applicable collective agreement that only refers to current legislation, the ET. Although the company states in the letter that it considers that there is a serious and guilty breach, a violation of contractual good faith, which could be punishable by dismissal, decides to impose only a 13-day suspension of employment and salary.

The worker challenged the disciplinary sanction that was confirmed by the court judge. In supplication, without questioning the imputed facts, the appellant raises the lack of typicity of the sanction as there is no applicable agreement, nor an alternative internal regime regulation.

However, the TSJ considers that the requirement of typicality is met by having founded the sanction the employer in various articles of art. 5.a and c); 20.1 and 2; 54.2.d); 58.1 and 60.2 ET. Especially in the transgression of good contractual faith, as a cause of disciplinary dismissal, giving full knowledge to the worker of the motivating causes of the imputed fault and of the sanction imposed with an attenuated graduation on the maximum of dismissal contemplated.

Although the company does not mention it, the coverage could have derived even from the Vacuum Coverage Agreement that although it was established on 5/13/1997 for 5 years but which continued to be applied after an indicative manner admitting the jurisprudence.

It does not change the conclusions of the TSJ, the jurisprudence cited by the appellant, because when there is no Collective Agreement the ET must be taken, as the minimum legal norm that regulates the contract and the other judgment cited was not applicable to the case.

The TSJ understands, on the contrary, that it is a recent clarifying judicial doctrine that considers the principles of legality, typicity and proportionality to be fulfilled in an assumption that, without an applicable agreement, a worker is sanctioned, describing the facts attributed as very serious, deserving of dismissal a lower penalty is also imposed. Endorsing the arguments of this judgment reasons the TSJ that the fact that the company does not have a collective agreement does not imply that it lacks sanctioning power, since the breaches are sanctioned according to the graduation of the faults and penalties established in legal provisions , such as the ET – as in the specific case – or in the applicable Collective Agreement.