A judgment of the Superior Court of Madrid supports the dismissal of a worker who refused to join her job one day a week
The Superior Court of Justice of Madrid (TSJM) has determined in a ruling that the fear of catching the coronavirus does not justify a physical absence from work, a firm resolution at the end of the appeal periods and that it only concerns the Community of Madrid.
In the judicial ruling, issued last June and to which Europa Press had access, the Social Chamber dismissed the appeal filed by the worker against the ruling of the Social Court number 39 of Reinforcement of Madrid that endorsed her dismissal of the company Iuris Corporate and that is now confirmed with the same arguments.
The worker held the position of accounting clerk within the defendant’s accounting department, performing tax and accounting management functions. The company delivered to the worker on April 30, 2020 a letter of disciplinary dismissal for a very serious lack of unjustified absence from the job, “indiscipline or disobedience to the orders received, and violation of contractual good faith.”
After the pandemic was declared, the company adopted a series of measures, including teleworking as a normal form of work and morning and afternoon work shifts, with only one worker attending per work shift and department in order to support the rest. of colleagues in teleworking. On March 25, 2020, the worker was assigned a face-to-face work shift from 8:00 a.m. to 2:00 p.m. But two days before, he had sent an email stating that due to the state of alarm he had to “take responsibility” not to go to the office.
Faced with this, the company reminded him that he should go and that “all security measures were guaranteed given the low number of people in the building and denying the possibility of teleworking on the indicated day.” Despite this, the worker did not come to her post. In the argument, the magistrates state that “the worker is not covered by precepts related to the prevention of occupational hazards”, indicating that “she voluntarily decided not to go to her post on the designated days” with “justifications that they had nothing to do with it. to deal with a situation of special vulnerability ».
In the same way, the sentence alludes that “the company adopted a series of organizational and preventive measures for the continuity in the exercise of its activity, guaranteeing a low risk of contagion”. “It is not possible to assess a probability of accident or a probability of injury”, so he emphasizes that “it was not possible to protect his absence from work in the possibility of interruption of the activity in cases of serious and imminent risk to the life or health of the worker or in any serious breach of the employer’s prevention obligations ”.
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