The TSJ dismisses the employee's appeal
Mar 5, 2024 7:34:25 GMT 2
Post by account_disabled on Mar 5, 2024 7:34:25 GMT 2
The actor filed an appeal against said ruling, but the Superior Court of Justice (TSJ) of the Canary Islands has dismissed the appeal and confirmed the judge's ruling, dismissing the worker's request.
The Chamber understands that the appeal lacks any motivation, argumentation or justification since it is built on the basis of the plaintiff's preferential right to return to the level 5 job based on the evidence presented at the trial. That is to say, what was alleged by the appellant cannot cause the entire Fax Lists evidence to be reconsidered, much less the personal evidence, to maintain that the position offered was similar to the one the actor had been occupying, when the factual account shows that it involves different reasons. positions, different levels, with different tasks and opposite salaries .
The appellant refuted the legal assessment made by the judge a quo of the documents, based on their contradiction with a witness statement. “If a witness is not capable of founding a factual review, she is even less capable of founding a substantive violation,” the magistrates rule.
In this sense, the Chamber affirms that the appeal cannot question, subtract, add or start from a reality different from that judicially appreciated , otherwise it would incur a procedural defect that would lead to failure. By building his reasoning on premises that do not coincide with the judicial chronicle, he would be begging the question, assuming a certain issue. By acting in this way, the procedural defect of the so-called "begging the question" or "making an assumption of the issue" is encouraged, which occurs when one starts from factual premises other than those of the resolution under appeal.
Therefore, all the evidence cannot be reconsidered, much less the personal evidence, to maintain that the job offered on LinkedIn was similar to the one he held, when from the unaltered factual account it is clear that they were different positions, different levels, with diverse tasks and opposite salaries. Therefore , at the time of the request for reinstatement, there was no vacancy “of the same or similar category” to which the plaintiff could access .
The Chamber understands that the appeal lacks any motivation, argumentation or justification since it is built on the basis of the plaintiff's preferential right to return to the level 5 job based on the evidence presented at the trial. That is to say, what was alleged by the appellant cannot cause the entire Fax Lists evidence to be reconsidered, much less the personal evidence, to maintain that the position offered was similar to the one the actor had been occupying, when the factual account shows that it involves different reasons. positions, different levels, with different tasks and opposite salaries .
The appellant refuted the legal assessment made by the judge a quo of the documents, based on their contradiction with a witness statement. “If a witness is not capable of founding a factual review, she is even less capable of founding a substantive violation,” the magistrates rule.
In this sense, the Chamber affirms that the appeal cannot question, subtract, add or start from a reality different from that judicially appreciated , otherwise it would incur a procedural defect that would lead to failure. By building his reasoning on premises that do not coincide with the judicial chronicle, he would be begging the question, assuming a certain issue. By acting in this way, the procedural defect of the so-called "begging the question" or "making an assumption of the issue" is encouraged, which occurs when one starts from factual premises other than those of the resolution under appeal.
Therefore, all the evidence cannot be reconsidered, much less the personal evidence, to maintain that the job offered on LinkedIn was similar to the one he held, when from the unaltered factual account it is clear that they were different positions, different levels, with diverse tasks and opposite salaries. Therefore , at the time of the request for reinstatement, there was no vacancy “of the same or similar category” to which the plaintiff could access .