Íñigo worked as a technician in an elevator repair company. After two years without receiving any complaints from his bosses, one day he received a dismissal letter. In it, the company informed him that he had detected serious security irregularities in several of his jobs after carrying out two audits in which he had been chosen at random. For this reason, he prayed the communication, he should leave the organization immediately. A few weeks ago, the Superior Court of Justice (TSJ) of Madrid declared Íñigo’s expulsion inadmissible. In the sentence, where the real name of the worker is hidden, the magistrates reproached the employer that, in such a case, there are other ways of warning, less serious, before executing the dismissal, the most serious of all sanctions. Above all, the ruling highlights, when the company became aware of the irregular conduct in the first audit, and far from taking action on the matter, it allowed the situation to repeat itself.
Layoffs “to bravas” like this, where employers skip sanctioning procedures and resort to expulsion when it’s not time, are a frequent source of lawsuits. Precisely, a similar case, and that has opened a strong debate in recent days, has been that of the employee fired for being late 176 times for her job. In the matter, the Asturias judges apply a criterion similar to that of the Madrid Supreme Court: as the company did not scold the employee for her conduct, the dismissal was “unexpected and disconnected from the tolerant attitude” of the management. Therefore, it becomes inappropriate.
precautions
Bosses must be cautious. Arriving late, disobeying orders or breaking work safety rules does not always open the legal doors to dismissal. There are rules. First of all, the company must make sure that the attitude of the operator is serious enough. Secondly, management cannot fall into what is known in labor jargon as “business tolerance”.
The second occurs when a worker “incurs in recurring offenses, but is not sanctioned,” explains Inmaculada Serrano, labor lawyer at Proluco Abogados & Economists. This attitude generates an expectation in the employee, who believes that he acts with the approval of his superiors when he is late, uses the work computer for personal procedures or disconnects to go to the gym.
In scenarios like this, supervisors have two options: sanction or be permissive. For there to be business tolerance, it is vital that the company is aware of the employee’s behavior and allows it “consistently over time”, explains Wilfredo Alberto Sanguineti, professor of labor law at the University of Salamanca. A different situation is that the worker hides his activity from his superiors. This was the case in a recent case prosecuted by Extremaduran justice, in which it supports the dismissal of an office worker who used the company mobile to talk for hours with a colleague about personal matters. Only when her superiors caught her talking on the phone “in a very low voice” several times, did they start an investigation and terminate her.
In which cases is an immediate dismissal justified? The answer is found in the Workers’ Statute (ET). Specifically, article 54 lists the causes that can precipitate a disciplinary dismissal and mentions “repeated and unjustified lack of attendance or punctuality at work”, “indiscipline or disobedience”, “verbal or physical offenses”, “the decrease continuous and voluntary performance”, “violation of good faith”, “harassment” and “habitual drunkenness or drug addiction”.
However, “the reality is that sudden dismissals, with and without business tolerance, are only successful for the company if the fault committed by the worker is very serious and, in addition, the company can prove it irrefutably”, explains the lawyer Inmaculada Serrano . Defining what is considered serious conduct is a thorny task.
As Pedro Muñoz Lorite, CEO of Labe Abogados, adds, the common thing is that, given the lack of specification of the statute, “the agreements graduate the severity of the applicable sanctions in each case”, defining for example “what is meant by reduction performance volunteer”; or “when a breach of the schedule can lead to dismissal,” explains the lawyer.
The issue has given rise to numerous lawsuits. An example is a ruling by the TSJ of Galicia, in which it rejects the dismissal of a clinic worker who constantly failed to comply with the schedule, but who was never reprimanded by the supervisor with whom she coincided. In another sentence, the Madrid TSJ condemned a company for dismissing a worker who used the company car for personal purposes, a practice that the company was aware of and accepted. And on the use of meal tickets, the TSJ of Cantabria revoked the dismissal of a manager who, at the expense of the company, ate in restaurants and ordered a la carte instead of resorting to cheaper formulas. The reasoning is repeated: the company cannot sanction conduct with which it has previously shown permissiveness.
In short, the essential thing, says Serrano, is that the employer “does not contradict his own actions.” If when the time comes the boss wants to turn off the tap, a warning to the worker is enough to dilute any illusion of acquired right (an email or communication to the staff would do). Only if after the wake-up call the attitude persists, the company has carte blanche to move on.
Spain pending tasks
No law imposes on companies the obligation to warn an employee before being fired. Something that “does happen with union representatives,” explains Wilfredo Sanguineti, professor of labor law at the University of Salamanca. There is some controversy on the issue, because Spain signed an agreement of the International Labor Organization, whose article 7 dictates that “a worker’s employment relationship should not be terminated for reasons related to his conduct or performance before offered him the chance to defend himself.” Our country has not yet formally complied with this obligation. “Spain recognized that it should change its legislation, but for the moment that has not happened yet,” the teacher stresses.
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