Why was the contract termination clause for poor performance for telemarketers cancelled?

Termination clause

In a ruling issued on October 13, the Audiencia Nacional decided to annul a contract termination clause for poor performance affecting telemarketers. They argue that it is necessary to differentiate between the minimum income pact and the figure of continuous and voluntary reduction of the employee’s income.

What the Audiencia Nacional alleges about the annulment of the contract termination clause

It turns out that this is a non-negotiated contract termination clause, which is imposed by the company in the document, so that, if the employee does not accept it, it means the non-subscription of the document.

In particular, the Chamber highlights that, in the documents in which the clause is implemented, it is applied to positions that do not require a very high level of training, which means that the chances of getting another job are lower. In addition, the employee’s freedom is more limited.

In this regard, the position of teleoperators is at the lowest pay level in their professional field and this is evidenced by the establishment of the professional classification system in the Collective Bargaining Agreement.

On the other hand, the functions of these workers are seriously protocolized by the employers. Then accept a clause establishing performance, under a comparative measure of 75% of the average production each month, achieved by workers in any other service.

This makes it act immediately as a contractual termination clause, turning its back on the subjective or objective elements that affect the lack of performance of a worker, in this case the telemarketers.

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Is the annulment of the contract termination clause abusive?

It may be considered abusive to apply the signature of an override of the termination clause as it is to workers who generally have more limited work options.

Taking into account that the employer may resort to disciplinary dismissal due to poor performance. Which, by the way, is a process that offers more guarantees for the worker.

On the other hand, this usual clause means a mass individual negotiation of specific working conditions that happens to violate the right to negotiate collective bargaining agreements.

This is because it implies avoiding the necessary voluntary nature of poor performance as a cause for disciplinary dismissal, and also avoids the guarantees imposed by law for this type of contract.

The provision in conflict is absolutely contrary to the methods adopted by the SC on the loss of the employment contract, for breach of the minimum performance covenant established in the contractual document.

Regardless of the circumstances, this type of termination clause in a contract inevitably requires the existence of an element of comparison that allows the conclusion that there is an underperformance, and in this particular case, this element of comparison does not exist.

In addition, the termination clause that is under debate, transgresses the provisions of ART 3.1 c of the E.T.. Basically, it establishes the will of the parties, among the sources of the labor document.

Taking into account that less favorable conditions or conditions that contravene legal provisions may not be set to the detriment of the employee.
In this case, the employee is being deprived of the guarantees that both the Collective Bargaining Agreement and the law provide to face a possible disciplinary dismissal due to diminished performance.

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