Up to now, the doctrine of the Supreme Court, contained in judgement 210 of 10 March 2016 and judgement 555 of 22 June 2016, has considered that, even though in principle the individual MSCT system prohibits an appeal for reversal being lodged, an appeal is allowed in cases when the action challenging the modification is included in a joinder with an action for compensation for an amount higher than €3,000, according to the interpretation of the provisions in Article 138.7 of the Spanish Act regulating the Labour Jurisdiction, (hereinafter referred to by its initials in Spanish “LRJS”): "The judgement that rules the measure is not justified must acknowledge the worker’s right to be reinstated with his/her previous working conditions and payment for the damages that the corporate decision could have caused during the time it was in force".
This broader "pro recurso" interpretation included the more verbatim and restrictive one in section e) of point 1 of Article 191 of the LRJS, which would mean understanding that the exception in such section, related to lodging an appeal for reversal when there is a joinder with another action that can be appealed, only refers to those involving a change of job or functional relocation; hence placing those related to significant changes in individual work conditions in a worse position.
Judgement of the Plenary of the Labour Chamber of the Supreme Court of 14 September 2023 amending previous doctrine
In its judgement number 556/2023 of 14 September 2023, ruled by the Plenary of the Labour Chamber amending doctrine, the Supreme Court has now concluded, no appeal for reversal can be lodged in the High Court of Justice against a judgement ruled by the MSCT procedural system even if a claim is included for an amount higher than €3,000 due to the challenged corporate decision being applied.
In the claim, the plaintiff challenged what, in his opinion, a MSCT would imply and petitioned for it to be revoked. An action for €6,000 as compensation was included as a joinder with such claim due to violation of the worker’s fundamental rights, (guarantee of indemnity). The pleadings in the claim petitioned, in a subsidiary manner, that the corporate measure was ruled unjustified and for the worker to be reinstated with his previous working conditions and payment, in all cases, of the salary he had not been paid while the measure was in force. The Labour Court number 2 of Cadiz dismissed this petition, against which an appeal for reversal was lodged by the worker in the High Court of Justice of Andalucía, which deemed that the MSCT action was not subject to reversal due to the plaintiff having withdrawn his petition for revocation based on violation of fundamental rights in his appeal that was in a joinder with the claim for the specified amount for compensation. However, the plaintiff maintained his petition claiming an equivalent amount to the salary he had not been paid while the challenged corporate decision was in force for an amount higher than €3,000.
The debate in the analysed judgment was focussed on deciding whether or not he could lodge an appeal for reversal against the judgement ruled in the MSCT proceedings, claiming the salary he had not been paid of a monthly amount during a period of time that exceeded €3,000.
What were the grounds for the interpretation by the High Court on which the amendment of its previous doctrine was based?
The judgement of the High Court examined application of Articles 26, 138.6, 138.7, 191.2 e) and g) and 192.2 of the Spanish Act regulating the Labour Jurisdiction and decided there was a need to change the doctrine from a systematic, teleological and verbatim interpretation of the procedural provisions in force and its understanding according to constitutional guarantees, (Article 24 of the Spanish Constitution).
From the standpoint of a constitutional interpretation of the rules about lodging extraordinary appeals, the High Court deemed that the pro actione principle was not applicable to the same extent when lodging an appeal in the jurisdiction, since lodging appeals was only based on procedural laws that regulated such means for challenging a judgement and a broad and flexible interpretation of the procedural rules, usually claimed due to the need to provide suitable effective judicial protection to the litigating parties, cannot simply be also applicable to the requirements to lodge an extraordinary appeal, such as an appeal for reversal, this was because it deemed judicial protection was also applicable to the party that had already obtained a satisfactory judicial ruling and wanted it to become an absolute judgement as soon as possible.
Regarding the analysis of the rule regulating the procedural system, the judgement deemed that the three exceptions included in Article 138.6 of the LRJS as cases in which the appeal for reversal would be allowed did not refer to cases such as the one it was analysing, non-collective MSCT proceedings, the High Court clarifying that the omission and interpretation contrario sensu would lead it to consider that if a certain hypothesis had not been included it was because the legislator intended that the general rule should be applicable and hence admitting an appeal in MSCT proceedings that did not coincide with any other of the stipulated exceptions would be against the procedural system designed by the rule.
The Plenary made the same interpretation when analysing the regulatory provisions in Article 191.2.e) of the LRJS on the appeal for reversal, stating that it seemed unquestionable once again that it was intended the rule should exclude the second level of litigation in individual MSCT proceedings. The Chamber recalled that procedural law did not offer a possibility to appeal a judgment ruled by the lower court only when the procedural system that must be applied is outlined, but returns to the matter when designing the structure for extraordinary appeals, basically appeals to the Supreme Court (cassation) and reversal. It added that this was based on the impossibility to lodge an appeal in the relevant Labour Division of the High Court of Justice against the judgement ruled by the Labour Court in legal proceedings involving significant changes in working conditions.
Lastly, in its systematic interpretation, the judgement argued that if the legislator had intended that the economic threshold for the damages referred to in Article 138.7 of the LRJS, which refers to the consequences of the judgement admitting the claim due to the MSCT being unjustified, to be the criterion for the possibility of lodging an appeal, it would have omitted the inclusion of judgements on MSCT proceedings in the list of those against which an appeal could not be lodged, so nothing new was ruled. In this respect, it stated that, if Article 26 of the LRJS did not allow a MSCT action to be included in a joinder with a claim for salary, this consideration meant the possibility was ruled out to admit the appeal for reversal by means of an extensive interpretation of the possibility offered at the end of Article 138.6 of the LRJS, concluding that, if a joinder was not possible of a claim for salary with MSCT proceedings, the reference provision could neither be applied to these legal proceedings.
By closing its circle of arguments, the High Court interpreted that, regarding the provisions in Article 137.3 of the LRJS, "A joinder may be made of an action claiming a professional category or group with a claim for the relevant salary differences. No appeal whatsoever can be lodged against the judgement ruled, unless the claimed salary differences reach the required amount for an appeal for reversal", the exception of a possible appeal makes sense for legal proceedings that admit a joinder of actions, such as those related to professional classification, but not for those for which there is no such possibility, like those of MSCT.
What are the consequences of this amendment to doctrinal criteria?
In conclusion, no appeal for reversal may be lodged against a judgement ruled according to the individual MSCT procedural system even if it includes a claim for an amount higher than €3,000 due to the challenged corporate decision being applied.
This change in doctrine has also raised alarm bells among the community of jurists who view with certain distrust the different legal and procedural consequences that could be implied by this interpretive trend of our procedural rules related to lodging extraordinary appeals, so it must be observed which interpretive criteria can result in being reviewed from now on regarding appeals for reversal and appeals to the Supreme Court (cassation).
Author: Marta Rico, Labour lawyer at RSM