Despidos y ERES en sede concursal: una alternativa a contemplar
As is well known, Labor Law provides for various mechanisms to deal with the readjustment of staff, among which it is worth highlighting that of objective dismissals for economic, technical, organizational and production reasons, and employment regulation files, whether temporary or permanent. .
For Nieves Rabassó / Lawyer, Economist and Bankruptcy Administrator
Davant this fosc panorama, trying to prevent the situation and minimize the dangers as much as possible. It is common for the entrepreneur to commit to his personal assets because they act as an autonomous person, because they are compelled to guarantee both the personal and family assets, the company's credits.This past
Sometimes, The depth of the crisis cannot be addressed only from the perspective of Labor Law and it is convenient, or even necessary, to propose restructuring by resorting to the mechanisms provided for in Bankruptcy Law. Whether or not to attend the contest, or the pre-contest, requires analyzing other aspects that go beyond the strictly labor scope (see the article on insolvency instruments as prevention tools on our website (www.alonso-cuevillas.eu/instrumentsconcursals), but in this article I would like to focus on highlighting some of the Advantages that in a crisis situation can offer the so-called Labor Bankruptcy Law, that is, the best treatment of labor issues within the framework of a bankruptcy process.
Let us begin by recalling a matter of a transitory nature, but of great practical importance in the coming months. Those companies that have availed themselves of the ERTES of force majeure contemplated in art. 22 of RDL 8/2020, they acquired the commitment to maintain employment for a period of six months from the date of resumption of the activity. RDFL 18/2020 exempted from said commitment those companies in which there could be a risk of bankruptcy, a normative provision that has been included in the successive RDLs issued due to the health crisis. To avoid, therefore, the serious consequences of such a legal commitment being understood to be breached (a circumstance that could entail the payment of all social contributions not paid during the ERTO, possible penalties from the Labor Inspection and even risk of nullification of dismissal with an obligation to reinstate and payment of processing salaries), the company should avail itself of the pre-competition in order to avoid the stated serious consequences that could otherwise occur.
Within the contest, objective dismissals and employment regulation files can also be carried out. The difference is that such dismissals or files will be processed before the Bankruptcy Judge himself, who therefore knows the economic situation of the company, which translates into a different approach to labor legislation. Yes, in general, in the social jurisdiction the pro-operative principle governs, in the commercial jurisdiction the principle of the interest of the contest prevails. The Commercial Court will also protect, of course, the interests of the workers, but will also take into account many other circumstances, among which the future viability of the company stands out.
"If, in general, in the social jurisdiction the pro-operative principle governs, in the commercial jurisdiction the principle of the interest of the contest prevails"
Thus, in the objective (individual) dismissal it will be much easier to prove the concurrence of the economic, technical, organizational or production causes that justify it., because all the necessary elements to assess your concurrence already appear in the bankruptcy process itself.
On the other hand,procedures for the substantial modification of collective working conditions, collective transfer, collective dismissal and suspension of contracts and reduction of working hours, once declared the contest, they will be processed before the contest judge and by the specific rules established in the current article 169 et seq. of the Bankruptcy Law. Regarding its regulation, it is worth highlighting the fundamental role played by the Bankruptcy Administration, a body designated by the Judge to ensure the correct development of the process in attention to the various opposing interests, which will know first-hand the real economic situation of the company and will ensure therefore for the balance between the rights of the workers, the continuity of the activity and the rights of the remaining creditors. The bankruptcy regulation of said files simplifies and shortens the consultation period and gives the bankruptcy judge much greater flexibility to adopt the most convenient solution to the exceptional needs of the company in a situation of insolvency.
Practical experience shows thatAs a general rule, both dismissals for objective reasons and collective files for modification, transfer, suspension or termination of employment contracts reach a more favorable resolution in bankruptcy regarding the future continuity of business activity.
Ojhey your company can recover from the crisis caused by COVID without the need for drastic remedies, but if the readjustment is unfortunately necessary, the specific instruments provided in the Labor Bankruptcy Law can be very useful to minimize the impact of the crisis.
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