Preliminary hearing in disciplinary dismissal matters. A necessary, albeit incomplete, rectification of previous case law

Commentary on Ruling of the Supreme Court 1250/2024, of 18 November

Abstract

The analyzed judgment, rectifying a previous jurisprudential criterion, recognizes the full validity in our legal system of the obligation to give a prior hearing to the affected worker before disciplinary dismissal, in accordance with the provisions of the seventh clause of ILO Convention 158. It is considered that this obligation does not require further normative development, so that the omission of such prior hearing will lead to the dismissal being considered unfair, due to non-compliance with a prior formal requirement. This general doctrine is qualified in the specific case, since the Supreme Court, in a debatable solution, considers that in this case it was not reasonable to require such a hearing, since the employer acted in accordance with precedent case law. Reasons of legal certainty justify for the high court that this requirement of prior hearing is only enforceable from the moment the change in case law is known, a date that is made to coincide with the date of publication of the judgment itself.