Competition and tacit dismissal. Commencement of the proceedings

The action for tacit dismissal cannot be brought after the application for voluntary insolvency proceedings and the commencement of the proceedings.

According to the judgement of the Supreme Court of 29 October 2014, Labour Chamber, once the insolvency proceedings have been judicially requested, the figure of collective "tacit dismissal" cannot exist due to events subsequent to that request, and the only reaction that the workers - through their legal representatives - can make in this respect is to request the collective termination of their contracts, all in accordance with the provisions of article 64 of the Insolvency Act.

In other words, for the purposes of the action brought in the present case (tacit and unfair dismissal), it is irrelevant that after the order declaring the insolvency proceedings the figure which in the labour sphere could be classified as tacit dismissal, and which social case law only admits when there are "conclusive facts or conduct" on the basis of which the unequivocal will of the company to terminate the contract can be established, may have occurred.

In a situation of insolvency, the only collective termination of labour relations that proceeds is the one agreed by the insolvency judge and precisely in accordance with the procedures established in insolvency regulations.

As the judgment under appeal correctly states, and as our law firm is aware, it is irrelevant that after the Order declaring the insolvency proceedings, the figure that in the labour sphere could be described as tacit dismissal could have occurred, and which - looking at it with suspicion - social case law only admits when there are "conclusive facts or conduct" from which the unequivocal will of the company to terminate the contract can be established. In a situation of insolvency, the only collective termination of employment relationships that is appropriate is that agreed by the insolvency judge and precisely in accordance with the procedures established in insolvency legislation (Law 22/2003, of 9/July; amended by Law 38/2011 of 10/October).