Seat of the Constitutional Court in Madrid. Aitor Sol
The Constitutional Court has annulled the dismissal of the director of a branch of Banque Chaabi du Marroc in Madrid, as the real reason for terminating his contract – taking part in a specific demonstration – violated the director’s right to ideological freedom. in connection with those of assembly and demonstration. The court understands that the dismissal was due to the fact that the manager had “actively” taken part in a mobilization in defense of the citizens of the Rif Valley, denouncing the political situation of that region within the Kingdom of Morocco.
Initially, the dismissal was declared void by the Social Court No. 27 in Madrid, but the judgment was later overturned by the Madrid Supreme Court (TSJM). This second instance considered the termination of the contract to be admissible, as a “violation of good faith and breach of trust” had occurred. Such circumstances were acknowledged “as the employee abused the company’s image and media on social networks by posting photos taken in his office with overlaid political messages.”
However, the Second Chamber of the Constitutional Court overturned the decision of the Madrid Supreme Court, as the dismissal is linked to the executive’s participation in the aforementioned demonstration. The reason given by the company, however, was the use of company images in the social network. In any event, this use was only discovered as part of an investigation initiated after the plaintiff’s participation in the protest on June 2, 2017. The court also took into account that another employee was fired immediately after he took part in the protest against the law.
The ruling — for which Conservative Sector Judge César Tolosa acted as rapporteur — also stresses that the defendant company “failed to meet the burden of proof that rested on it by failing to demonstrate the real reasons behind its decision “. is unrelated to the denounced motive and is discriminatory. The ruling stresses the need for judicial authorities to strike the necessary balance between the worker’s obligations under his employment contract and “the extent of his constitutional rights and freedoms”. In this context, the Court recalled the “prominence” of such rights in the legal system.
In any case, the Constitutional Court warns that the right to freedom of belief may be subject to “restrictions” if the employee performs services in companies with “philosophical orientation”. And he cites as an example the case of private educational centers that have a defined ideology. Therefore, the judgment uses this specific case to clarify that the dismissal of the worker accused of such behavior may be justified if a “teaching activity hostile to or contrary to the ideology of a teaching center is carried out” if this is the case is proven. “the open or insidious attack” on this ideology.
The ruling also clarifies that even where interference by corporations in the exercise of the right to freedom of belief may be justified, that interference “cannot be unlimited”. And he explains it by saying that a worker’s simple disagreement about such ideas cannot be grounds for dismissal “unless it has been externalized or disclosed in some of the center’s educational activities.”
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After applying all of this doctrine to the present case, the court concludes that the Madrid Supreme Court’s judgment violated the plaintiff’s fundamental rights. He justifies this by saying that the judgment under appeal “did not meet the requirements of constitutional doctrine for the distribution of the burden of proof in cases in which the existence of evidence of a violation of fundamental rights by the employee is asserted in the context of the lawsuit.” And accredited. Therefore, in ruling in favor of the company, the Social Division of the Supreme Court of Madrid “not only failed to restore, but actually damaged” the applicant’s right to freedom of belief in relation to them, enshrined in Article 16.1 of the Constitution. other rights that are also part of the participatory democratic principle, such as freedom of expression and assembly, provided for in Articles 20.1 and 21 of the constitutional text.
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