CASE: The employee is transferred from a normal/common work contract, to a senior executive contract. Afterwards, his executive status/position is terminated with the correspondent payment of compensation as per it is established , when no specific agreement has been made between the contract parties, by Employment Law and its regulations for Senior Executive contracts.
Immediately, he resumed his previous standard/common work status which had been suspended, and once again a dismissal is carried out, this one under the normal working regime. The company recognizes its unfair character.
COMMENTS: The existence of two periods is evident: the first period is for time of employment with a common work contract, and the second period is until the termination of the senior executive term, during which the standard working terms had been suspended and corresponding services were performed regarding this special employment contract/status.
The question regarding the calculation of compensation in view of the existence of a first period with a common/standard employment contract followed by a senior executive one and the termination is produced once again under the normal employment regime/regulations, has been the objective of various sentences from the Supreme Court. As a meaningful example of said Case Law it can be mentioned the Supreme Court decision dated the 18th of February, 2003.
The Supreme Court understands that the first ordinary/standard employment contract remains suspended when the employee has been appointed for a higher charge.
In this case, it is not a question of the existence of parallel legal relationships, without a continuity solution, but the suspension of certain initial contract assignments which remains in a phase of slow progress during the existence and development of another special assignments that substitutes the first, which at its time continues to exist when the senior contract is terminated.
Article 9 of the RD 1382/1985 which regulates the special senior executive employment status/contract, establishes/clarifies that when the senior executive reaches this position in the company via internal promotion, rising from a standard/normal employment position, the contract must be officially written and must stipulate whether “the new contract substitutes the previous standard one or whether this previous one is simply suspended"
Anyhow, if this level of specification is not complied with in the contract, “it will be automatically understood that the standard contract has been suspended”. The altering of the employees’ status will only come into effect two years after the signing of the contract. And the legal solution regarding the effects of terminating this special agreement is that by terminating this senior executive agreement, it is the employee who can decide whether to resume the standard employment contract. All this, “without affecting the compensations he is entitled to in the event of terminating the contract”.
By Jesus Castro
Puerto Banús Marina by Roberto Pecino at Flickr.com