“A slap on the wrist” to the municipalities. This is how the law firm of two workers from the Ventas de Retamosa nursery school (Toledo) define the judicial victory that annuls the dismissal of these employees due to COVID-19. The municipal council decided to close this municipal service arguing that it did not have funds to maintain it when the pandemic arrived, since subscriptions fell and as it was an unregulated education – from 0 to 3 years old – many parents turned to other relatives to care for them. their children. Circumstances, however, later overturned these arguments.
The pandemic and the fall in the birth rate are primed with nursery schools: one in five centers have closed
The two workers decided to denounce their dismissal as it was considered null and void and the Social Court agreed with the City Council. But they appealed to the Superior Court of Justice of Castilla-La Mancha and turned the tables: in these two cases, the judges have considered that the economic reasons alleged by the municipal government were not justified. To do this, it has taken into account the reports provided by the workers’ lawyers, which included municipal expenses for investments such as a ‘skate park’ and other non-essential services, while the nursery school remained closed.
In the 2020-2021 academic year, nursery schools have suffered a severe blow due to the pandemic, with the suspension of municipal service by many municipalities. Many families have chosen to seek alternatives to non-compulsory education: there are 79,333 fewer minors than in the previous period, in the 0-3 year stage.
The Social Courts had been giving the reason to the municipalities, insofar as they understood said dismissal to be justified, but the Superior Court of Justice of Castilla la Mancha has set the opposite precedent: not only has both dismissals been declared inadmissible “because they were badly calculated” , but has achieved the nullity of the same. The City Council had “the possibility of relocating the workers and they also enjoyed additional protection because they were pregnant, a protection that the City Council intended to skip thanks to the justified termination of service in the pandemic.”
The City Council must pay all salaries for a year
Ignacio Palomar, the director of Servilegal, the law firm in charge of the case, explains to eldiarioclm.es that if the City Council had done things properly, relocating the workers in another of the multiple municipal services, “they would have avoided a statement as burdensome as the one obtained ”. Because now, due to the ruling, you must pay the processing salaries, that is, the salary from August 2020 until now, as if the workers had remained on the staff for the last year, as well as compensate them with the legal maximum given that the service in which they provided services no longer exists.
From Servilegal they celebrate this change of paradigm and that “justice qualifies and delimits the dismissals derived from the pandemic, since the City Council cannot intend to make an aggressive cut in the compensation to be delivered based on COVID-19 and these may be the first of many sentences to come ”.
“He took advantage of the pandemic to decide the total closure of the service, without respecting the seniority of the employees and with a very low compensation,” they explain. This is due to the fact that these daycare services are sometimes tendered and carried out through subcontractors that are then ‘absorbed’ by the local Administration. The City Council only paid the dismissal costs during the time that it was ’employer’ but now the Superior Court forces the Consistory to take charge of the total compensation.
These are therefore two sentences that set a precedent and that can serve to support people who are affected by this same issue, although it is important to highlight that they must claim within 20 days of notification of the dismissal. Otherwise, “they will no longer be able to request annulment.”