The Superior Court of Justice of Murcia, in a ruling dated March 8, 2022, has declared null the dismissal of an employee one week after receiving a sexual proposal from a superior, which she rejected.
Under the appearance of a dismissal due to completion of the work or service, a dismissal was hidden in the case as retaliation against the worker for not accepting the sexual advances of her superior.
The company reported the termination of the employment relationship due to the end of the work with respect to an activity that had not really been completed, since it is known that, after the termination, it continued to be carried out by other workers.
Bullying
At the company's Christmas lunch, in a pub and while they were playing table football, in the presence of other colleagues, he touched the worker's butt and whispered in her ear that he wanted to have sex with her. The worker together with another colleague to whom she suggested what happened decided to leave the place.
The dismissal was communicated a week after the worker had a meeting in which the possibility of having relationships was once again suggested by her superior, -this time indirectly-, because it would be convenient for her due to the changes that were going to take place in the company. .
In this meeting, if well, the superior apologized for his attitude in the pub, reproaching himself for his behavior, justifying himself by saying that perhaps it was not the right place or way to start something like that and that in another way or another If he wanted to be different, he ended up telling the worker that there were going to be changes in the company soon, that he was very happy with the development of his work, but that he had to think about what he wanted to do to keep his job.
This iter revealed that the termination of the worker did not have a reasonable and justified reason, much less that it was justified at the end of the work; On the other hand, the Chamber considers that there are sufficient regional indications to know that there is a situation of sexual harassment on the part of the employer, reaching the touching of the plaintiff's butt, and that it was this incident that conditioned the worker's permanence in the company. company, so that once the indications of violation of fundamental rights (in its form of sexual freedom) have been accredited, the dismissal must be declared null.
And with regard to compensation for non-pecuniary damage, the Chamber points out that only with the declaration of nullity of the dismissal the non-pecuniary damage is not understood to be repaired without further ado when, as in the case, there is an attack against sexual freedom and the dignity of the working woman, to which is inherent a high burden of non-pecuniary damage projected on the intimate assets of the person, suffering from touching.
Regarding the assessment of non-pecuniary damage according to the LISOS, Judge José Luis Alonso disagrees in his Dissenting Opinion, in addition, he objected that under the coverage of compensation, a covert sanction contrary to the “non bis in idem” principle would be imposed.
