Thursday, December 8

A court condemns the Administration to pay 245,000 euros to a worker fired after being a mother


A court in Palma has sentenced the Balearic Port Authority (APB) to compensate 50,000 euros and pay 195,139 euros in unpaid wages to a worker who was fired while she was on maternity leave and who, before dispensing with her services, stopped paying the fees that corresponded to her, leading her to “absolute job insecurity”, as the woman stated in her lawsuit. After several years of “ordeal and anguish” on the part of the employee, the sentence, to which elDiario.es has had access, recognizes that her right to non-discrimination and equality has been violated due to her status as a working mother with a child newborn and obliges the company to reinstate her immediately.

“I know that if I get pregnant, it is likely that they will end up throwing me out”

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The judicial resolution appreciates, in line with what was postulated by the plaintiff and the Prosecutor’s Office, the existence of a clear violation of the fundamental rights of the worker, which was linked to a fraudulent commercial contract with the APB despite the fact that the true relationship between both parties was of a labor nature, as labor inspectors had certified and had been judicially confirmed. The ruling declares proven that the woman made continuous claims during her period of pregnancy and maternity for the public entity to regularize her situation, but was met with the repeated refusal of the Port Authority.

Through the same sentence, the Social Court number 2 acquitted the former president of the APB Joan Gual de Torrella and its former director Albert Pons, who were also sued by the worker.

Specifically, the affected party, in charge of the documentary service of the APB, signed a commercial contract in July 2010 and a second one in October 2013 as a technical assistant for the planning, indexing, conservation and transfer of the archives of the agency dependent on State ports. However, the real relationship that she linked with the company was of a labor nature and not commercial, with a working day from Monday to Friday from 9:00 a.m. to 5:30 p.m.

Employment relationship verified by Labor Inspection

Not in vain, Labor Inspection officers determined, after appearing at the APB, that the essential requirements were met so that the relationship between the plaintiff and the port agency was understood as an ordinary employment relationship and urged that the woman be discharged in the General Scheme of Social Security. Meanwhile, the affected filed a claim for the company to agree to recognize the employment relationship that united them, leaving special evidence that she was pregnant at that time.

In the absence of a response from the Authority, the former worker finally opted to sue the entity before the Social Courts of Palma and, after giving birth in December 2014, the affected party – in line with the legal position that had Adopted Labor Inspection – began her period of maternity leave, for which she presented a letter to the company together with the corresponding parties to file the petition. The APB denied the request and proceeded to return the documentation that he had submitted to qualify for the benefit, alleging that the relationship between both parties “was not a relationship of those included in the Workers’ Statute.”

The Social Security finally proceeded to grant her maternity leave in the Special Scheme for Self-Employed Workers (RETA). However, since October 2014, two months before giving birth to her child, the employee had stopped charging her fees. “The situation in which I found myself bordered not only on absolute job insecurity, but also economic,” says the worker in her lawsuit, signed by the lawyer Pablo Alonso de Caso.

dismissal of the worker

The situation did not end there. A year later, on October 5, 2015, the APB terminated the worker’s contract alleging a “repeated breach of essential contractual obligations” for not having provided services during the time in which the woman remained on sick leave. A circumstance that the employee considers “totally deceitful and tendentious”: “The APB has been aware at all times that, first of all, I caused sick leave due to TI derived from the state of good hope in which I was and later due to my maternity. ”.

The worker asserts that she even complied with her obligation to provide the consequent sick leave, confirmation and communication of the birth of her first-born, despite which the APB “rejected them.” “She has even denied ‘bread’ to my newborn son, because the invoices to which she was forced to turn for the compensation” that corresponded to her have been rejected, she sentenced in her lawsuit.

In this context, the company alleged in the face of the trial for these facts that the employee did not present any previous claim in administrative proceedings, because she did not consider her claims invalid. Faced with this, the magistrate asserts that there is a “clear and indubitable” record of the presentation of two previous claims by the plaintiff.

The worker did not leave her post

Likewise, the Port Authority maintained that there was no dismissal, but a voluntary abandonment by the woman of her job, but the judge once again overturned her arguments: “In the present case, it has been proven that the plaintiff, during the period between October 2014 and May 2015, she remained in a situation of TI (temporary disability), maternity leave and accumulated nursing leave, so it is not possible to appreciate the concurrence of abandoning her job in any case “.

Along these lines, the ruling states that, with firm judicial recognition that the relationship between the parties was of a labor nature, and the unilateral desire to abandon her job by the employee not having been proven, the resolution issued by the APB for which he agreed to terminate the technical assistance contract constitutes dismissal.

“Consequently, the fraudulent and abusive action carried out by the Port Authority, which under the guise of an administrative contract, concealed a true relationship of a labor nature, thus avoiding the fulfillment of its obligations and responsibilities towards the plaintiff worker , has been a clear violation of fundamental rights [de la demandante], specifically their guarantee of indemnity and their rights to equality and non-discrimination based on sex and their maternity situation”, the resolution abounds. A circumstance that leads the judge to declare the worker’s dismissal null and void and order the APB to reinstate her immediately.



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