Confirmed the existing doctrine of the Supreme Court in which in the absence of payment or delays in the payment of wages by the company allows the worker to terminate the contract with the right to compensation in the same terms as that corresponding to the unfair dismissal, adding that there is no enervation for the subsequent payment of the amounts.

Recent Judgment of the Supreme Court, dated December 9, 2016, confirms the existing doctrine of the 4th Chamber in which according to article 50.1.b of the Workers’ Statute considers that it is a just cause for the worker to request the termination of his contract, the lack of payment or continuous delays in the payment of the agreed salary, having the right, as established in paragraph 2 of the same article, to the compensation indicated for the unfair dismissal.

The matter is a question includes the non-payment by the company of five months of salary and an extraordinary payment to a worker, justifying this breach that the economic situation of the company did not allow the payment of wages on date; and that the company has already filed the claim by the worker, and yes, before the trial, proceeds to pay practically all the amounts due, so that the intention of the company with the payment of these amounts before the holding of the trial, was to carry out a kind of enervation of the action, alleging that the amounts owed at that time amounted to an amount that could not be considered with the entity sufficient to understand the serious breach of the employer that allows the admission of the compensated termination of the worker’s contract.

Requirements that must exist for the indemnified termination of the contract.

However, it is already settled jurisprudence that determines the doctrine when it comes to understanding what are the casuistries that must be given to understand that the employer’s salary breach has sufficient importance so that the worker can terminate the employment contract:

1) It is not necessary to assess a guilt in the breach of the employer, to demand the concurrence of the cause of resolution of article 50.1.b) ET.

2) In order for the resolutory cause based on non-payment or continuous delays in the payment of the agreed salary to succeed, the requirement of gravity in the business breach is required exclusively.

(3) Whether the objective criterion for assessing the continuous, repeated or persistent delay in the payment of remuneration is met is not to be assessed where the delay does not exceed three months

The existence of a negative economic cause does not justify the non-payment of wages.

That said, the allegation as a cause that justifies the non-payment of wages, that the company is going through a negative economic situation, is not admissible in any case, because as the 4th Chamber of the Supreme Court has reiterated on other occasions, the lack of justification in the non-payment of wages, even when the company is incurring in a bankruptcy process, it does not make any sense because the Workers’ Statute itself has already provided the employer with powerful tools such as the suspension or termination of contracts based on the existence of continuous economic losses.

For this reason it is not considered coherent to allude to a lack of compliance with the main duty of payment of wages, based on a negative economic situation, when other existing collective actions suitable to optimize wage costs have not been activated.

Enervation of debt through the subsequent payment of wages.

On the possible enervation of the debt, making the total or partial payment of the wages owed before the date of the trial, the Chamber considers whether it is possible to minimize the business breach with its payment, avoiding the termination of the worker’s contract and the compensation corresponding to unfair dismissal. To do this, it will be necessary to analyze exactly what is the amount owed, if the subsequent payment of wages is total or partial, and if the time of payment is before the demand, after the demand.

One of the indications to be analyzed is the amount owed, if it is from an important entity that supposes a serious damage to the worker, for this, as well as the time that the delay in the payment of wages lasts, being able to aggravate or mitigate the non-compliance if it is delays in the payment of days, weeks or months, and the doctrine establishes a minimum limit of three monthly payments (STS July 27, 1988 and STS of May 27, 1987)

When the company pays all or part of the wages, as in the above case, in which it makes a partial payment after the lawsuit has been filed, reducing the amount owed from 5 monthly payments, to an amount less than 3 months of salary, the jurisprudence has already resolved these cases in judgments of February 25, 2013, March 25, 2014 and January 19, 2015, in which it considers that although amounts have been paid before the act of the trial, the delay is considered to have existed and was maintained at the time of filing the application for a resolutory action, so it does not unnerve or nullifying the action.

For the foregoing and as a conclusion, if the delay is greater than three months, even if the company makes the payment of all or part of them after the filing of the lawsuit, the delay in the amounts that are owed are considered of sufficient entity, we will be facing a serious breach of the employer, which will allow to accumulate the action of claim of amount for non-payment of salaries to that of compensated resolution of contract, in accordance with art. 26.3 in fine of the LRJS, being able, where appropriate, to extend the demand to include the amounts subsequently due, and claiming in addition to the amounts the compensation corresponding to unfair dismissal.

Experts in national and international business consulting
Phone. 91 552 27 57