The Social Room of the Superior Court of Justice of Catalonia has dismissed the appeal presented by Meliá Hotels International SA and has classified the dismissal of one of its workers as unfair by confirming the ordinary employment existence between both parties and not from a dependent self-employed person as the company claimed.
The worker began his activity on January 1, 2004, working continuously and exclusively for the company, holding the position of maintenance technician at the Meliá Sarria Hotel in Barcelona. His annual gross salary amounted to 38,115 euros (equivalent to 104.42 euros daily), and was subject to the collective agreement of the hospitality and tourism sector of Catalonia.
To formalize his activity, he registered with the Special Regime for Self-Employed Workers (RETA) since its inception in 2004, remaining in this situation until September 16, 2020. However, its integration into the hotel organization reflected characteristics of an employment relationship. For example, your schedule Normal work was from 8:00 a.m. to 4:00 p.m., Monday to Friday.although, depending on needs, he was also assigned night shifts from 10:00 p.m. to 6:00 a.m. The hotel manager was the one who managed her schedules and work days, communicating her needs through WhatsApp and other means.
On March 16, 2020, due to the situation generated by the COVID-19 pandemic, the hotel management informed the worker of the need to temporarily close the establishment and asked him not to return to his job. Finally, the relationship officially ended on August 3, 2020, when the worker began providing services for another company.
The TSJ of Catalonia has analyzed two essential criteria that define an employment relationship: dependency and unrelatedness. For this, the Chamber has relied on the presumption of employment contained in article 8.1 of the Workers’ Statute (ET), which establishes that, in the absence of a written contract, the employment relationship is presumed if the worker provides services within the organizational framework and under the direction of another person in exchange for remuneration.
Regarding dependency, the magistrates have considered it proven that the affected person was subject to the organization of the company, since his Schedules, holidays and tasks were decided and supervised by the hotel manager. In addition, the hotel management controlled the completion of assigned tasks and their justification by reviewing daily reports and invoices. This showed that the worker did not have full autonomy over his time or his organization.
Regarding alienation, they have determined that did not assume any financial risk, since his remuneration depended solely on the company, which was his only client. The company provided the means and materials to carry out its functions, from work tools to the corporate mobile phone and access to all hotel facilities.
The Court has also highlighted that the worker was fully integrated into the organizational structure of Meliá, developing its activities in a coordinated manner with the maintenance staff. I participated in briefings and organizational meetings with the rest of the employees and attended company events. This integration, together with the exclusivity and performance of his work under a schedule set by the company, has reinforced the consideration that he was a salaried worker and not an independent self-employed person.
Another key point for the Chamber has been the absence of the worker’s own business structure. The relationship with the company was characterized by exclusivity and subordination in the execution of tasks. Furthermore, the plaintiff did not have his own resources nor did he make relevant investments for his activity, which contrasts with the figure of the economically dependent self-employed person (TRADE), who must have a certain independent business infrastructure.
For all this, the sentence has determined that the affected person should receive a compensation of 66,515.54 euros as compensation for unfair dismissal. This compensation was established as one of the options that the company had to choose: either reinstate the worker in his position with the same conditions prior to the dismissal, or proceed to terminate the contract by paying this sum.
In addition to the compensation, the company has been ordered to pay the wages lost from the date of dismissal until the notification of the ruling, which was set at an amount of 104.42 euros per day. Likewise, the payment of a additional amount of 8,196.60 euros as salary debts corresponding to pending vacations and extraordinary payments.