In the case under trial, it is discussed whether the prior hearing required by the Statute includes all union delegates or only those who can be elected according to the rules set forth in the Organic Law of Freedom of Association (hereinafter, "LOLS"). The High Court concludes that this obligation only applies to union delegates who meet the requirements of the LOLS.
The dispute dates back to the holding of union elections in the company, in which the union section is formed and its representatives (called "union delegates") are elected. The result of the elections is notified to the management of the company, which recognises the constitution of the union section but does not accept the appointment of the elected union delegates as it considers that their election did not respect the provisions of art. 10 LOLS. The company then dismissed an affiliated employee for disciplinary reasons without a prior hearing of the union delegates.
The obligation to give a prior hearing to union delegates in case of dismissal of one of their members is configured as a guarantee of the employees affiliated to a union against dismissal and is regulated in art. 55.1 of the Employees Statute and in art. 10.3.3º LOLS. Specifically, the Statute establishes that when the employee is affiliated to a trade union (and the employer is aware of this), prior hearing shall be given to the trade union delegates of the trade union section concerned. In turn, article 10.3.3º recognizes the union delegates' right to "be heard by the company prior to the adoption of collective measures affecting employees in general and union members in particular, and especially in the dismissals and sanctions of the last".
The employee, who understands that in her dismissal the obligations derived from her condition of affiliate have not been respected (as is the procedure of previous hearing with the union delegates), files a lawsuit for dismissal, requesting a declaration of unfair dismissal. Faced with this demand, the company alleges that art. 10.1 LOLS only grants union delegates the representation of union sections of companies or work centres that employ more than 250 employees. In this case, he concludes, the defendant company has less than 250 employees, so it is not obliged to recognize the existence of union delegates.
Both the sentence of the Social Court number 10 of Malaga and the Social Chamber of the High Court of Justice of Andalusia (headquarters in Malaga) dismiss the lawsuit and declare the dismissal to be fair. Faced with these resolutions, the employee filed an appeal for the unification of doctrine providing, as a contradictory sentence, the Social Chamber of the High Court of Justice of Valencia of 14 April 2011, in which the Chamber declared unfair a dismissal for lack of hearing of the delegates of the union CNT to which the dismissed employee belonged.
In addition to the existence of contradictory pronouncements, the employee affirms that treating union members differently according to the number of employees in the company (less than or more than 250) is a violation of the principle of equal treatment contained in Article 14 of the Spanish Constitution. Ultimately, the plaintiff states, this differentiated treatment means "the suppression of union activity in workplaces with fewer than 250 employees”.
The Chamber concludes that this obligation does not include all of the company's union delegates, but that the hearing process only includes those delegates who comply with the requirements set forth in Article 10 LOLS. In its argument, the Chamber recalls that the number of union delegates can be extended by collective agreement, so that the union concerned does not at any time see its fundamental right to freedom of association reduced. In this way, and unless the collective agreement provides otherwise, the company is not obliged to give this hearing to the union delegate who is merely a spokesperson or representative of any union section.