Compatibility of Conventionality and Constitutional Control: Commentary of the Superior Catalonian Court’s sentence of January 17th, 2020 which determines the inapplicability of article 52 d) of Labour Law (ET) during the period of validity prior to its formal repeal

Abstract

Commentary of the Judgement of the Catalan Superior Court of January 17^th, 2020 which determines the inapplicability -before being repealed- of article 52 d) of the Labor Statute (ET). This norm identified intermittent absences at work within a period of two months as a valid cause for dismissal, provided certain requirements were met. The Court considers that, although the norm had recently passed the internal constitutional control, it does not comply with de higher standards of protection established by norms of international law (article 6.1 of Convention nº 158 of the International Labour Organisation; articles 4.1 and 5 of ILO Convention nº 155; article 3 of the European Social Charter; article 11 of the Convention on the Elimination of All Forms of Discrimination against Women, New York, 18 December 1979.) Conventionality control is applied as manifestation of normative hierarchy and part of the applicability judgment that, unlike the constitutionality judgment, is attributed to the ordinary jurisdiction.