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Published the new procedure to claim processing salaries from the State

Today it has been published in the BOE the Royal Decree 418/2014, which modifies the procedure for processing claims to the State for processing salaries in dismissal trials, a rule that was approved by the Council of Ministers on June 6
For your interest, we collect an analysis of its most relevant points, carried out by Estíbaliz Elorriaga, from the Wolters Kluwer publications editorial team.
The new procedure to claim processing salaries from the State
He article 57 of the Workers' Statute Since its initial drafting, it contemplated the assumption by the State of certain processing salaries paid by the employer to the worker in the event of a delay in setting them for reasons beyond their control. Specifically and currently, for those accrued in excess as a result of issuing a ruling recognizing the unfair dismissal after the period of ninety business days from the date of presentation of the claim (taking into account that said salaries are accrued only if the readmission, not for compensation).
Indeed, the employer can claim from the State the payment of the processing salaries contemplated in the section 2 of article 56 of the aforementioned Statute for the time that exceeds those ninety days, with certain conditions and in accordance with the procedure that has been modified by Royal Decree 418/2014.
This rule, which will come into force tomorrow, Thursday, repeals the previous one of RD 924/1982, on claims to the State for processing salaries in dismissal trials, which never suffered direct modifications (indirect, only those derived from the modification of the term, from sixty to ninety days, by the Royal Decree-Law 20/2012, July 13).
Let's see how the new claim process looks through these questions that arise:
Why is the procedure for claiming processing salaries from the State modified?
The justification is twofold:
1) The regulations that affect it have been modified. So:

  • The Law 36/2011, of October 10, regulating social jurisdiction, introduced a mandatory prior administrative claim and regulated the reasons for suspension of the calculation of the deadline.
  • He Royal Decree-Law 3/2012, of February 10, of urgent measures for the reform of the labor market, modified article 56.2 of the Statute, restricting the right to collect processing salaries to cases in which, once the dismissal was declared unfair, reinstatement was opted for. of the worker.
  • He Royal Decree-Law 20/2012, of July 13, on measures to guarantee budgetary stability and promote competitiveness, modified article 57 of the Statute, increasing from sixty to ninety the number of business days necessary for the businessman to claim from the State the payment of the processing salaries.
  • He Royal Decree 2725/1998, of December 18, together with the Royal Decree 942/2010, of July 23, modified the competence to resolve this type of claims, which was initially attributed to the Provincial Directorates of Labor and Social Security, and came to be assumed by the Government Delegates, creating in these the functional areas of Labor and Affairs Social that, in the multi-provincial Autonomous Communities, will be organized in provincial agencies, integrated into the corresponding Government Subdelegation.

2) Experience has shown that the procedure for processing and resolving these claims is too complex and ineffective, as various bodies from different territorial areas intervene in it: the Government Delegations, which resolve, and the Ministry of Justice, which pays. .
What does the Royal Decree regulate?
The procedure for claims to the State for processing salaries in dismissal trials (art. 1.1).
To what assumptions does it apply?
To those cases in which the ruling of the competent jurisdictional body that for the first time declares the inadmissibility of the dismissal is issued after more than ninety business days have passed since the claim was filed (art. 1.2).
Once the sentence is signed and provided that the reinstatement of the worker is chosen, the processing salaries and Social Security contributions corresponding to those who exceed the indicated period may be claimed from the State.
Who can file the claim?
In principle, the employer who has reinstated the unfairly dismissed worker and has paid the processing salaries (art. 2).
If he is insolvent, the worker will be dismissed.
What bodies are competent to process it?
The Delegations and Subdelegations of the Government instruct the procedure until the issuance of the proposed resolution, which will be transferred to the General Directorate of Relations with the Administration of Justice, of the Ministry of Justice (art. 3).
Said General Directorate is the competent body to resolve and propose the payment of the financial obligations derived from the file.
In what period can it be submitted?
Within a period of one year from the finality of the sentence (art. 4.1).
How is the claim initiated?
According to art. 4.2, the employer or the worker in the event of provisional insolvency of the former, may claim the corresponding amounts in writing, which will be presented:

  • In the administrative records (art. 38.4 L 30/1992).
  • Through the electronic registry enabled for this purpose.

The claim document must indicate the period considered for processing salaries paid by the State and the amount in which they are valued.
What documentation must accompany the application?
According to art. 5 of RD 418/2014, the application must be accompanied by:

  • Witnessed copy of the dismissal demand, of the ruling declaring its inadmissibility and of the judicial resolution of reinstatement of the worker, or appearance for that purpose.
  • Certification from the Secretariat of the jurisdictional body or TSJ, stating the chronology of the procedure and specifying the reason for the suspension or its non-existence.

In any case, the dates of: dismissal, presentation of the claim, sentence and notification and finality of the same must appear.

  • Documentation that reliably certifies the payment to the worker of the claimed wages.
  • Original certification from the TGSS on fees paid by the dismissed worker in the period between the date of dismissal and the date of notification of the ruling.
  • Worker's work life report. If the employer cannot obtain it, the corresponding Area or Dependency of Labor and Immigration must request it ex officio.
  • If a representative is appointed for the processing, notarial power expressly stating the granting of said power or granting of power made before a competent official.
  • If the worker of a company declared insolvent claims, a certified copy of the employer's provisional insolvency order, stating the date of its finality.
  • If the worker of a company in bankruptcy claims, a certificate from the bankruptcy administrator stating that he is aware of the worker's claim, the status of the bankruptcy procedure, and that the worker has not collected any amount from the bankruptcy estate.

How is the request processed and resolved?
According to articles 6, 7 and 8 of the new Royal Decree, the Delegation or Subdelegation of the Government issues a proposed resolution within a period of fifteen days from the entry of the claim in the registry of the competent body.
The procedure can be suspended, however, if there is not sufficient evidence of the documentation presented or during the period for correcting deficiencies in the application.
Finally, the General Directorate of Relations with the Administration of Justice adopts and notifies the resolution within one month of receiving the proposal. Resolution that puts an end to the administrative route.
If the aforementioned period passes without having been notified of the resolution, it is deemed to have been rejected.
What to do if the application is rejected?
The interested party may sue before the jurisdictional body that heard the dismissal process, in accordance with the provisions of Law 36/2011, of October 10, regulating social jurisdiction (art. 8.2).
What regulations apply to files already filed when the new Royal Decree comes into force?
The new regulations apply even to those files already initiated and pending final resolution. That is, retroactively (Single Transitional Provision).
And then, the Royal Decree makes two obvious points, given the higher rank of the standards to which they refer:

  • That wage claims processed by the State, referring to sentences that were not final as of July 15, 2012, are subject to Royal Decree-Law 20/2012, of July 13 (which modified the deadline from 60 to 90 days).
  • That in the cases in which the dismissal occurred before February 12, 2012 (date of entry into force of Royal Decree-Law 3/2012, of February 10), the recognition of processing salaries is appropriate both in the cases of unfair dismissal in which reinstatement and compensation are chosen.

Entry into force
RD 418/2014 will come into force the day following its publication in the "Official State Gazette".
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