Dissuasive compensation for arbitrary dismissal, between sunrise and sunset: compensatory justice or «cadí justice»?

Abstract

For 40 years, the system of legally assessed compensation for unfair dismissal has been in the Spanish Workers’ Statute. Never a higher judicial authority questioned it. The system has disadvantages for working people, but it also offers benefits, because it frees them from the –difficult– proof of real damage, according to the civil formula ex articles 1.101 et seq. For companies, it has the great advantage of the ease of calculation, without the risk of legal upheavals. The last labor reform (2012) only reduced its amount, lowering the cost of arbitrariness. On the other hand, Spanish law does not know the legal institution of «dissuasive compensation» for unfair dismissal, only in the case of null and void dismissal for violation of fundamental rights, although the amounts set are usually pyrrhic.

However, several very recent decisions (2020) of various lower judicial bodies are about to blow up this old system of compensation for arbitrary dismissal. The basis for such disruptive judicial solutions is the disagreement with the national law (art. 56 Workers’ Statute), according to the obligatory conventionality judgment ex article 96 Spanish Constitution, articles 10 of ILO Convention 158 and 24 of the revised European Social Charter (1996).

In this way, a sector of the Spanish judicial doctrine would be aligned with the recent Italian constitutional doctrine on the same matter, rejected, on the other hand, by French jurisprudence. The author makes a study of the successes and errors of these sentences and the probability that they will be validated or, on the contrary, revoked, by the higher courts. Change of laws or change of legal culture, asks the author, according to a new principle of legal civilization of dissuasive justice in the face of the arbitrariness of company dismissals?