How to prove the lack of liquidity of the company to postpone the dismissal payment

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How to prove the lack of liquidity of the company to postpone the dismissal payment

From the provisions of article 53.1.b) of the Workers’ Statute (hereafter, LET), it seems that the company must allege, in the dismissal letter, and prove, in the trial, that it lacks sufficient liquidity to make . the corresponding compensation applicable to the dismissed worker. This means that, if it is alleged in the letter, but does not appear in the trial, this evidentiary nature will not be fulfilled. As it is known, the aforementioned article 53.1.b) LET shows how the employer must be available to the worker “together with the delivery of the written communication, the payment of twenty days per year of service, prorating by month for periods of less than one year and with a maximum of twelve monthly payments». Add to the general rule the following exception: «If the termination decision is based on article 52.c), with an allegation of economic reason, and as a result of such an economic situation, the compensation mentioned in the previous paragraph will not be available to the worker, the employer , who expressed the written communication, may stop doing so, without prejudice to the worker’s right to demand compensation from him if the termination decision becomes effective.». If the defined requirements are not met, the extinguishing decision must be classified as unacceptable, in accordance with the provisions of article 122 of the Law Regulating Social Jurisdiction.

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In applying the order, the Chamber interpreted (SSTS March 21, 2019, Ar. 1736 and November 23, 2022, Ar. 5492, etc.) that, with the invocation of the economic cause, the other reason must be additional and specific evidence . because”The mere existence of the economic reason, which justifies the objective dismissal, is not enough by itself to prove the lack of liquidity that allows the employer to take advantage of the possibility of delaying the payment of compensation for a period after the notice. at contractual termination. From its literal words it can be seen that this possibility can only be used if the decision to terminate is based on the allegation of the economic reason, but this does not mean that this situation can be considered sufficient in itself to also show that the employer experienced cash flow. the problems that prevent it from that time have enough liquidity to meet the payment of the fee. The latter requires additional and specific proof, which confirms the particular and specific additional existence of liquidity and treasury problems that prevent the payment of the compensation amount.», as stated today by the Judge of the Supreme Court on July 19, 2023, Jur. 302569, FJ 3. The entrepreneur must prove the lack of liquidity «a situation that—forced— It is independent and does not necessarily coincide with your poor economic status. The company, and not the worker, has access to the relevant documentation (as well as other possible evidentiary elements, such as the accounting expert, testimony of the accounting staff, etc.) from whose analysis the state of illiquidity can be determined. (STS February 15, 2018, Ar. 760, FJ 3). However, the contribution of some evidence is also admitted as long as it is strong in terms of the reality of what is proposed. And, thus, if a negative situation of the company is proven due to the number of debts, the loss of clients, the non-payment of outstanding credits, the failure to pay regular payments or the negative bank balance, they will serve as indicators whenever “It is not always possible through full proof, and then strong, more than reasonable indicators about the lack of money will be valid. In this case, the worker must destroy or neutralize the evidence, art. 217.3 LEC. (STS January 12, 2022, Ar. 452, FJ 3).

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Well, nothing has changed and, considering that it has been proven that the company, when processing the collective dismissal, lacks money and presents a significant overdraft in its accounts, it is understood that there are “sufficient signs to use the evidence of the investment that emerges. from article 217.3 LEC. Logically, the reality of illiquidity can be considered because they show the dire economic situation of the company, so it is up to the worker to destroy or neutralize these signs , a situation that did not happen. There is no data of any activity aimed at countering that defining panorama” (STS July 19, 2023, Jur. 302569, FJ 3). And, it is said, if there is no evidence , but with evidentiary evidence, this worker must continue to “testify”, even for “introduction” purposes.

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