- The social court No. 2 of Cordoba has been sentenced to Mercadona for damages to a worker haunted by this company.
- The Judgement No 230/06 estimated compensation € 20,000 for damage caused to the worker.
The union CNT has won a harassment suit against the company Mercadona, in which the arbiter of social n º 2 de Córdoba ordered to pay compensation of 20,000 € to a former employee of the company, named Marta FC
The former employee began his employment with the company in 2000 Mercadona in store Bollullos Par del Condado (Huelva). In 2002 the company enters a new store manager, named J. L Araixa, which changes the treatment of the workers and especially to the workers, even to insult and blame the on the job, until then, and in the words of the store manager, was exemplary.
After this continued hostility, which increases after FC Marta position in support of a partner, the worker is forced to camber store, getting the transfer to the city of Cordoba in 2004. At this time the employee begins to suffer an anxiety depression, which produce low and his subsequent dismissal, unfair recognized in judicial settlement of June 29, 2004, the Labour Court No. 1 of Cordoba.
After the dismissal, the worker will keep coming insults and degrading comments by Mr. Araixa about you and your family, compounding mental box that summarizes the decision: "difficulty breathing, emotional instability, family and social isolation, insomnia, headache, vomiting, agoraphobia, feelings of helplessness and hopelessness that lead to a suicide attempt in October 2004." This picture was confirmed by a forensic team provided by the CNT, to support the allegations against the company Adona Merc.
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social Court Córdoba No. 2
Judgement No 230/06
DABM, Judge, Head of the Labour Court No. 2 of this city and province, having been promoted by DAZR cars, Counsel, representing Marta.FC D, against Mercadona company in the field of Compensation for Damages, has issued this statement.
Facts
.- Dated 03/27/2006 First presented at the Faculty of claim signed by the plaintiff, which accounted for sharing this tumor Social Court, which, after state the facts and legal bases from which upheld his right to sentencing plea according to their claims. Second-Declared
demand and the date and time for holding the act of the trial, he, upon fulfillment of legal requirements, took place on set, to which the parties and counsel appeared in the minutes that extended purpose. Open trial, the plaintiff was affirmed and reaffirmed in its application to the clarifications they deem appropriate. The defendant objected, urging the rejection of it. Accepted and practiced the proposed tests, initial claims were ratified, being conclusive cars for sentencing. Third .-
has been discussed in this case the plea this territorial court, lack of specificity of the facts of the claim, statute of limitations and lack of passive legitimacy of the defendant company, and the right of worship to receive the compensation claimed. Facts proven
First-Marta FC began their employment with the company Mercadona on March 17, 2000, with contract of indefinite duration and with a daily wage of 35'49 euros, including the share of extra payments . Second .-
started in the shop Bollullos del Condado (Huelva), where the first two years the workforce very satisfactory. However, in 2002 relieve the Chief of the naming store J. L Araixa , who completely changes the deal with employees in general and Marta in particular insulting even in front of customers with words like stupid and useless, criticizing many aspects of work and urging and recriminations that things never had their privacy.
Third .- To mark the end of a classmate and friend of Martha, it is positioned in its favor, which increases the hostility of Mr. Araixa, promising that she too would go to the street.
Fourth .- Marta is forced to switch stores, getting a transfer to Cordoba in January 2004. In March of that same year he began with an anxiety somatization of depression, experiencing dizziness, which meant a medical leave of 15 days. On April 4 receives letter of dismissal for misconduct, being recognized as inadmissible by the company in conciliation court on June 29, 2004 in the Labour Court No 1 of Córdoba.
Fifth .- Even after the dismissal keep coming news that Mr. Araixa continues offensive and humiliating remarks to her and to her family, all of which causes the mental picture is going to worsen, with difficulty in breathing , emotional instability, social isolation and family, insomnia, headache, vomiting, agoraphobia, feelings of helplessness and hopelessness that lead to a suicide attempt in October 2004, to drink plenty of Alprazol. Sixth
July 13 .- The act of conciliation was held before the smac, appearing then turned over to fixed demand] Social Court No 3 of Córdoba, litigation that resulted in an order dated December 20, 2005 , while having been withdrawn by default. Brought new settlement on 30 January 2006 that concludes ineffective for failing to appear the defendant .
Legal grounds
One .- In pursuance of Article 97.2 of the Labour Procedure Act, it should be noted that the facts declared proven to be inferred from a joint assessment of the evidence examined, especially the medical and psychological reports and interrogation of the plaintiff, from which got a great sense of truthfulness.
Second .- The defendant opposes several exceptions, first territorial incompetence of this Court to understand that the incident occurred in the workplace Bollullos in the province of Huelva, which can not be accessed because the last center in which the plaintiff was served in Córdoba and there were recent allegations, as unfair dismissal itself.
also opposes inconcrección except the truth of the allegations, to which access has not, since Article 80.1.c) of the Labour Procedure Act provides that the application must contain "clear and specific enumeration of the facts upon which the claim be and all those who, according to the substantive law, are essential to the resolution of the issues "and only a cursory reading of the complaint filed to verify that amply meets this requirement. Third-
also claims the right prescription for having been more than a year since the incident occurred. Article 1973 of the Civil Code, as to the interruption of the limitation period stipulates: "The limitation of actions is interrupted by the exercise before the courts, by extrajudicial claim of the creditor and any act of acknowledgment of debt by the debtor." The prescription is a legal institution is not based on grounds of strict justice, but it serves pragmatic conveniences to provide the legal relations of any degree of certainty and security and therefore should be valued with the restrictive approach, accepting the interruption of the period in all cases where the person concerned by acts evidencing a clear intention to preserve and maintain the right.
On the other hand, in cases such as this, which seeks compensation for damages, the period begins to run from it could be claimed, that is, not since the last wrongful act occurs, but since it is known repair damage in all its dimensions. Consequently, the exception must fail, since, except that after the dismissal has continued to make insulting comments toward the plaintiff, the critical period of anxiety and depression has been between April and October 2004, when the attempted suicide and, having submitted in writing for conciliation by the CMAC in July 2005, the year had not elapsed, interrupting the limitation period, which began again counting on that date, having brought the second settlement in February 2006 . Fourth-
a fourth derogation Mercadona claims that can not be condemned for not being aware of the facts upon which the claim is based, to be the work of an employee of yours and not the plaintiff having been brought to the attention of the company, claim should be classified as passive lack of standing.
However, as the Supreme Court ruling says de Andalucía (Sevilla) on April 19, 2004, "regarding the responsibility of the employer, you can reach for being an active subject of harassment or because worker suffering harassment by another subject, this occurs within the field of business management schools "adding also that decision:" It was also deduced from the rules of our system of fault liability in eligendo om monitoring, referred to management, middle management or the employer selects improperly or not properly controlled its activity, this being the foundation of private responsibility, with different requirements as described on administrative responsibility. "
also Article 4.2 of Law 31/95 of occupational risk prevention orders: "Pursuant the duty of protection, the employer must ensure the safety and health of workers at your service in all aspects of the job. For this purpose, as part of its responsibilities, the employer made the prevention of occupational risks by adopting all necessary measures to protect the safety and health of workers, rules that extracts the Supreme Court court, on October 8, 2001, the following conclusion: "the duty to protect the employer is absolute and virtually unlimited. Be taken protective measures are necessary, whatever they were. "
Fifth .- As to the merits of the case, precludes the defense of the respondent on the grounds that the events are not considered doctrinal and jurisprudential mobbing.
The decision of the Superior Court of Justice of Andalusia (Granada), dated 11/03/2003, argues that "mobbing is defined in the scope of work as situations of harassment against a worker who developed bitterness of prolonged psychological violence and lead to social alienation in the working environment, psychosomatic disorders are causing anxiety, and sometimes, they get the job worker's neglect in not withstand stress to which it is subjected. However
who suffer harassment claiming not enough to prove any arbitrary exercise of its power management business, it is necessary to show:
A) That the purpose of the employer as an active subject of harassment or, where appropriate, as subject tolerant of it, was harming the mental integrity of the worker or disregard their duty of protection in this regard. B) That she has sustained some psychological damage, which requires the existence of a clinical demonstration of the pathology described by psychology. "
This course is now on trial, appear that the plaintiff has suffered regularly for many months, by the Head of the store Mr. Araixa insults, harassment and unfounded accusations labor, ending with a dismissal harassment unmotivated and even after the termination of the employment relationship has continued derogatory remarks and demeaning to the worker and your family. This has led to a psychological breakdown, which has led to an anxiety-depression, all directly related to labor issues referred to, must be concluded that we have here a clear case of moral harassment, made willfully and retention time.
This unlawful conduct has caused material damage in the areas personal, social and professional actors and mental health damage described above , damages should be compensated and, although financial compensation for these intangible assets is very difficult to quantify, it is considered prudent to fix the amount of 20,000 euros, with which the defendant has to compensate the worker. Viewed
these Articles and other general and relevant application of, on behalf of His Majesty the King, delivered the following Judgement
dismiss the objections by the defense of the company and I think part of the leadership of this process demand , declaring the right to attend Dona Marta FC to compensation for damages, condemning Mercadona to pay her the sum of 20,000 Euros .
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