Adapting the right of option to supranational and constitutional rules in cases of unfair dismissals: notes in support of reform

Abstract

When a dismissal is ruled as inadmissible by a judge, the right of option that can generally be exercised by employers is among the most firmly established in Labour law. It has been ratified on numerous occasions by both the Constitutional Court and the Supreme Court. The issue was debated during the reforms carried out by the legislator in 2012, yet it would appear that its adaptation to the constitutional framework is now unquestionable. The present study, however, aims at analysing aspects of its design that may contravene both constitutional rules (one may indeed advance arguments that counter the Constitutional Court's doctrine in this regard) and supranational rules, the ILO Convention 158 and the European Social Charter in particular. In the pages below we examine questions such as: whether the right of option should be eliminated from the legal system (clearly aiming at the dismissed person’s reinstatement in any case); the limitation of procedural compensation; the attribution of the right of option; or the possibility of establishing an open compensation regime, non-subjected to taxed rates. Indeed, a new Workers' Statute seems imminent, and this may therefore be the right time to engage in certain reforms. The objective would be to regain the balance that was lost following a series of continuous legislative manoeuvres which ultimately devalued the position of employees in the face of dismissals.