Thursday, February 2

The Justice annuls a sanction to a cleaner of the Clinical Hospital of Madrid who denounced her working conditions

The Justice has decided to annul the sanction imposed on a trade unionist from the Clinical Hospital of Madrid for distributing brochures in which she complained about her working conditions in the center’s cleaning service. The Superior Court of the capital criticizes the concessionaire of the service, Garbialdi, for sanctioning several members of the Company Committee with 45 days of suspension for distributing these pamphlets and for violating their freedom of expression and their union action. Three other workers sanctioned in similar terms are waiting for the capital’s courts to resolve their cases after in this first case the company has even been sentenced to compensate the trade unionist for moral damages.

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The protest brochures that led to the sanctions began to be distributed in different areas of the Hospital ClĂ­nico San Carlos in December 2019. Writings in which different complaints could be read about the state in which the cleaning workers of the public hospital carried out their function : “Due to the lack of cleaning material that we have been suffering for months with the Garbialdi concession company, we are going to find ourselves forced to not be able to scrub all the departments, rooms, ICU rooms, operating rooms, etc. of the center, since we don’t have enough mops,” the statement said, for example.

The workers and the concessionaire had gone through moments of labor conflict a few months earlier. In April 2019, the unions had called off a strike after four days of protests at the hospital, as reported by the UGT in this statement, after obtaining, among other things, 11 new hires. Half a year later, the claims returned due to the lack of cleaning material to work with, a few months apart from the coronavirus pandemic landing in Spanish hospitals.

The distribution of these leaflets resulted in warnings from the Garbialdi concession company and, finally, in sanctions for four union members of the committee. A total of 45 days of suspension of employment and salary for a very serious offense based on an open precept of the agreement that punishes any breach of labor obligations. The company, specifically, alleged that these brochures and protests “alter the normal functioning of a public service” and sanctioned the four.

The first court that studied the appeal of one of the registered trade unionists was number 13 of the Social Court of Madrid and decided to endorse the punishment imposed by the company. That first sentence interpreted that the statement from the workers’ representatives was not a simple complaint but a full-fledged threat. “It constitutes a real threat, since it makes Hospital workers and users understand its intention to cause harm if a certain condition occurs, such as the lack of cleaning material,” he says. Another of her statements, the court said, “already constitutes verification of the threat” of not undertaking the hospital cleaning service.

The Superior Court of Justice of Madrid has just handed down a sentence that says the opposite: that the sanctioned trade unionist along with her colleagues was exercising her freedom of expression and her trade union function, that in no case was she threatening anyone and that the sanction, moreover, it was illegal and disproportionate. The sanctioned person, say the social justice judges, “is not only a worker, but also has the status of representative of the workers and, as such, exercised freedom of expression to protect the collective interest of those represented at the time that handed out pamphlets in different hospital rooms”.

Those writings and pamphlets, according to the TSJM, did not contain any type of threat, but rather their objective was “rather to warn and disseminate, for the knowledge of the hospital, patients and relatives, information: the lack of means to deal with the cleaning of the hospital center that they had been denouncing for a long time and that the defendant company, in their opinion, does not solve”. Its objective was not to threaten anyone but, says the sentence, “to claim a more energetic action against business breaches in the supply of cleaning supplies in the hospital, denouncing the passivity of the cleaning company awarded”.

The effectiveness of fundamental freedoms

According to sources familiar with the process explaining to this newspaper, the TSJM has so far resolved the case of one of the four trade unionists sanctioned by the concession company and the rest are waiting to know, furthermore, if this resolution is appealed before the Supreme Court. Supreme Court and if that resource passes the filter of admission for processing. A sentence that marks the way to the others, which have also appealed, and that reminds that “in a system inspired by democratic values, subjection to that criticism is inseparable from any position of public relevance”, in this case a public adjudicator of the Community of Madrid.

The sanction, therefore, violated the right to freedom of expression of this worker at the San Carlos Clinical Hospital. “Not even the company has proven that the distribution of those leaflets has caused damage and what they consisted of,” she reproaches the company. It also recalls that “the formalization of an employment relationship does not imply the creation of a territory immune to the effectiveness of human rights and fundamental freedoms, nor does it deprive one of the parties, the worker, of the rights that are inherent to him” .

The sentence not only annuls the sanction, but also forces the company to compensate the worker with 9,000 euros for moral damages. Beyond the nullity, moreover, the judges argue that it was disproportionate: “There is no bad faith carried out by the worker in her capacity as representative of the workers when she has limited herself to exercising her right to freedom of expression in the exercise of legitimate part of union action”, explains the Superior Court of Madrid.