Remember that the drop in productivity is only cause for disciplinary dismissal when it is due to the will of the worker
MADRID, 19 Oct. (EUROPA PRESS) –
The Social Chamber of the National Court (AN) has annulled as “abusive” a clause that a ‘contact center’ introduced in the new contracts for telemarketers and that allowed them to be fired if their performance was below the average of 75% , considering that in this way the company in question tried to avoid the fact that the law only allows a disciplinary dismissal for low productivity if it is due to the will of the worker.
The AN thus considers the lawsuits filed by the CGT, UGT, USO and CCOO unions against Digitex Informática, a ‘contact center’, for a clause that the company communicated to the workers’ representatives that it would incorporate into the new contracts concluded as of last June 4.
According to the sentence, to which Europa Press has had access, the clause in question established that the parties –company and worker– “by mutual agreement establish as a validly recorded reason for the termination of the contract the low performance of the worker, in three consecutive months or in four alternate months within a period of six, (when) it does not reach 75% of the average monthly production achieved by the workers of the service to which it is assigned”.
Digitex justified that “the adoption of this measure is motivated by the business need to homogenize the process of measuring the results of each of its services and, therefore, a more efficient management of the human resources associated with them”.
The unions presented successive lawsuits that accumulated until reaching a trial held on September 27. The workers’ representatives argued that the clause was “abusive” because “it dispensed with the necessary culpability required by the cause of dismissal provided for in section b) of article 54.2 of the Workers’ Statute (ET)”, and that it violated the right to collective bargaining because it entailed an imposition on all new contracts.
Consequently, the unions explained, “what the company does with this new clause is to create, through individual negotiation, a new cause for dismissal in which the necessary culpability of the conduct” of the affected worker is dispensed with.
The plaintiffs emphasized that the low productivity cannot be attributed solely to the worker because “such performance does not depend on his will but on third parties accepting the sales.” Therefore, “the success of the sale depends on a random factor,” they stressed.
The company, for its part, defended the validity of this type of clause recognized by jurisprudence and specified that it was only imposed on contracts linked to certain campaigns in which the number of sales affects the remuneration of the contractor to the company. In any case, he added, “the worker could accept the contract under those terms or not.”
The Social Chamber indicates that the question to be elucidated is to determine if the clause is “valid” or “abusive”, “in addition to injuring the right to collective bargaining because it is an individual mass negotiation regarding a matter already regulated in the collective agreement”.
The sentence, presented by Ramón Gallo, coincides with the unions in that “the abuse of rights is manifest, since the employer through this clause intends not to have to resort to the cause of dismissal provided for in section e) of article 54.2 of the ET to terminate the contract for poor performance, which would require proving the guilt and seriousness of the conduct.
“Although the clause when setting the performance to be achieved contains a comparative element -75% of the average monthly production achieved by the workers of the service to which it is assigned–, it makes it operate ‘ipso facto ‘ as a cause for contractual termination, disregarding those subjective or objective elements that may have influenced said lack of performance,” he stresses.
In this regard, the magistrates emphasize that the functions of these workers “are strongly protocolized by the company.” “They attend or issue contacts following work methods with protocolized actions and receive calls for the provision or attention of any services listed” in the collective agreement, they specify.
In addition, the Social Chamber establishes that “it is a non-negotiated clause that the company imposes in the text of the employment contract in such a way that the non-acceptance of it by the worker is equivalent to the non-signing of the employment contract” .
It also points out that in the contracts where the aforementioned clause is inserted, they are to cover positions where an “excessively high” level of training of the worker is not required, “hence the opportunities of finding a job are less, and that the freedom of this is even more limited.
However, he says that “it is clear that with this clause what is intended is to deprive the worker of the guarantees that both the legislation and the collective agreement grant him in order to face a disciplinary dismissal for poor performance.”
David Sánchez, head of USO’s ‘contact center’, has highlighted in a statement the importance of this sentence for the sector, since “it is the first time that this lawsuit has been raised collectively in the National High Court”.
He also stressed that the ruling is “crucial” because “the lawsuit was filed against Digitex, but throughout the process the company has been absorbed by the Konecta Group, the largest in the sector in Spain, which employs, according to the times, to between 17,000 and 20,000 workers”.
“From our union perspective, we cannot allow this type of abusive clauses. And now, in addition, we have a sentence that will mark the jurisprudence and with which we can denounce each of the clauses in the rest of the companies,” he has valued.
Sánchez took the opportunity to reiterate that “this way of operating implies an imbalance between the rights and obligations of the two parties to the employment relationship and benefits only one party: the employer”. “They are an unsustainable pressure for each worker, shifting to him the risk that the employer must assume, who hires, decides and plans the services,” he settled.
