The discharge value of the severance payment by the worker

The discharge value of the severance payment by the worker

It is worthless because it was the company and not the worker who unilaterally terminated the contract. Consult with expert Labour Lawyers in Dismissals.

According to the Judgment of the Social Division of the Supreme Court dated 27 March 2013, it has been established that the dismissal recognised as unfair by the employer without having paid any amount in compensation despite the fact that it offered a certain amount, significantly lower than that which corresponded. Releasing value of the settlement. FOURTH - The application of the above doctrine leads to the appeal being upheld. In this regard, it should be noted that the document signed by the employee on 16 March 2011 has the following content: "Ms Tamara acknowledges the unfairness of the dismissal dated 16 March 2011 and offers Mr Isidoro the sum of €1,500 in compensation.

This amount is paid to Mr Isidoro by bank transfer to the account where he usually receives his salary within a maximum of 48 hours. Mr. Isidoro accepts this amount as compensation for unfair dismissal and, although he acknowledges that this amount is less than the amount to which he could legally be entitled, he declares that the company's obligation to compensate him for this situation has been satisfied. Mr. Isidoro declares by signing this document that he has nothing more to claim for this compensation from Guardian Glass Express S.L., with the payment of the severance pay pending at the date of dismissal.

Ms. Tamara states that as soon as the settlement has been drawn up by the company, it will be handed to her for checking and subsequent payment". The fact that the worker signed the aforementioned document should not be considered to have any effect on the termination of the contract, as it was the company and not the worker who proceeded unilaterally to terminate the contract, giving him a letter of dismissal and on the same day he signed the aforementioned document, which the worker signed. In the aforementioned document, despite the company acknowledging the unfairness of the dismissal, it only offered him the sum of 1500 euros, when he was entitled to 10,05296 euros, without the company paying him that sum, undertaking to pay it by bank transfer within a maximum period of 48 hours, which it did not do, and without there being any reason, due to the meagre amount of compensation offered.

Examination of the aforementioned document leads us to conclude that:

1. Although the company, after acknowledging the unfairness of the dismissal, offered to pay the sum of EUR 1 500, which is considerably less than the amount corresponding to the unfairness of the dismissal - EUR 10. 05296 euros - as it did not proceed to pay that amount, despite having undertaken to do so within 48 hours, since the worker had not received any amount as alleged consideration for the termination of the employment relationship, the document signed is deprived of any enforceable value, as stated in the judgment of this Chamber of 25 January 2005, appeal number 391/04.
2. There is no withdrawal because the contract has already been terminated by the employer's decision to dismiss, so that the worker's statement can only be seen as a subsequent agreement with that decision.
3. For the same reason, there is no mutual agreement, as the termination effect is prior to the worker's eventual acceptance of the dismissal in the document of 16 March 2011. These circumstances lead the Chamber to understand that the employee's statement contained in the aforementioned document of 16 March 2011 has an abdicatory content of waiver of the dismissal action, contrary to the provisions of article 3.5 of the ET. Furthermore, it should be noted that, in accordance with the provisions of article 1282 Cc, the acts subsequent to the contract are evidence of the intention of the contracting parties.
   Indeed, on 24 March 2011, the company presented him with a balance and settlement document stating that he had received 2. 73307 euros, an amount which includes the severance pay "therefore considering the contractual relationship with the said company terminated for all purposes on this date", a document which the worker refuses to sign, stating on it "not in agreement" and the date "24-03-11", and the company proceeds to state on the bottom of the document, just above what the worker has written and also by hand, the following: "Awaiting the worker's agreement to pay". This data reveals that, on the one hand, the worker was not in agreement with what had been agreed and, on the other hand, that the company was aware of this disagreement as it made the payment of compensation and wages conditional on "the worker's agreement.

Consult our Employment Lawyers in Madrid.

Source: G.Elias y Muñoz Abogados Madrid