In those individual dismissals, based on the economic, technical, organizational or production causes, derived from a collective dismissal process, our jurisprudence reiterates that the requirement to pre-notice the legal representation of the workers is not necessary when it is a dismissal, and therefore the provisions of article 53.1.c do not apply. of the E.T.
When an individual dismissal is made based on the causes established in article 52.c) of the Workers’ Statute (E.T.), economic, technical, organizational or production causes, the process established in article 53.1 paragraph c) establishes that a period of notice of fifteen days must be granted, counted from the delivery of the personal communication to the worker until the termination of the employment contract, establishing as an obligation to deliver a copy to the legal representation of the workers (RLT) for their knowledge.
Well, this way of acting with prior communication to the RLT for its knowledge and control, raises doubts as to whether it should be applied in those individual dismissals made after a collective dismissal procedure, in which the legal representation of the workers has been involved in the negotiations through the consultation process established in Article 51 of the ET, in the sense, if the workers are dismissed without prior notice with 15 days, and without previously communicating the dismissal to the RLT, it is a breach of the individual dismissal procedure that allows claiming the inadmissibility of the same and therefore the compensation corresponding to this or, where appropriate, the reinstatement of the workers.
In a recent judgment of the Supreme Court of November 23, 2016, the position of the doctrine on the fact of not complying with the 15-day notice to workers and the RLT when the individual dismissal from collective dismissal that has been carried out for the reasons established in article 52.c) is reiterated. it does not allow it to be considered that, due to this breach, the dismissal is considered unfair.
In this way, the lack of the requirement of notice, both to the worker and to the RLT, in a dismissal derived from a collective dismissal procedure must be understood as follows:
Failure to comply with the notice period to the worker
The fact that article 53.1.c) of the ET establishes a period of notice of 15 days to the worker affected by the dismissal, does not imply that the breach of said period entails the declaration of inadmissibility of the dismissal, but that the consequence for the company must be that it must pay the corresponding amounts of salary in proportion to the days of notice not complied with.
The existing obligation and that must be fulfilled, reiterated by our jurisprudence that are to notify individually in writing to all the workers affected by the dismissal the reality of the same and its causes, in this case economic, organizational and production, as well as the simultaneous provision of compensation and notice, and in case of omission of the written communication to the affected worker with expression of the cause, or the lack of disposition to the same of the accrued compensation (unless there is economic cause and there is no liquidity), the dismissal must be declared inadmissible.
Failure to comply with the notice period to the legal representation of the workers.
The control of information or knowledge of the objective dismissal by the RLT makes sense when in the case of individual dismissals based on the causes of art ́52.c) of the ET, it is the employer who enjoys autonomy of decision, so the obligation to inform the RLT in advance is imposed in order for it to carry out a control over the unilateral action of the employer, to verify that it is being carried out in accordance with the law.
However, in cases of individual dismissals arising from a collective redundancy procedure, it cannot be understood necessary to require the need for communication to the RLT, because such control has already been carried out in the consultation process in which the RLT has been involved, in this way, the STS 18 April 2007 (rec. 4781/2005 ) establishes “the granting of notice may be made in the communication, outside it or not and also in itself the notice does not contain any useful information for the purpose of controlling the termination decisions of the employer. Therefore, it does not make sense to establish an obligation to communicate the notice and it must be understood that the information must refer to the communication of the cessation, which, moreover, could constitute an extension of the rights to information of Article 64 of the Workers’ Statute “.
That is, the purpose of the requirement of notice to the legal representation of the workers is intended to inform it that the dismissal made by the company has been carried out in compliance with the correct use of the procedure and causes of the objective dismissal, something that obviously, by the fact of having been part of the negotiation of the collective dismissal, distorts the need to reiterate the decision to dismiss those people and for those reasons that are already known, therefore, the copy of the dismissal letter to the workers’ representatives, by express legal mandate, should only be delivered in the cases of individual dismissal of article 52.c) ET and not in those of collective dismissal.
In conclusion, those objective dismissals made for economic, technical, organizational or production reasons that derive from a collective dismissal process, do not have to comply with the legal requirement to pre-warn the legal representation of the workers, this in no case can be considered a breach of the procedure and therefore the dismissal is understood as unfair, and on the other hand, the lack of notice to the worker in any case, will be supplied with the payment of the amounts proportional to the days of lack of notice.