If your boss fires you unexpectedly, judges often side with the worker | Company


Íñigo worked as a technician in an elevator repair company. After two years without receiving any complaints from his bosses, one day he receives a letter of dismissal. In it, the company informed him that it had detected serious security irregularities in several of his functions after having carried out two audits during which he had been drawn by lot. For this reason, the communication prayed, he had to leave the organization immediately. A few weeks ago, the Superior Court of Justice (TSJ) in 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 means of warning, less serious, before executing the dismissal, the most serious of all penalties. Above all, underlines the judgment, when the company became aware of the irregular behavior during the first audit, and far from taking measures in the matter, it let the situation repeat itself.

Bravado firings like this, where employers skip penalty procedures and resort to expulsion when it’s not the right time, are a frequent source of lawsuits. Precisely, a similar case, and which has opened a lively debate in recent days, was that of the employee dismissed for having been late for work 176 times. In this matter, the judges of Asturias apply a criterion similar to that of the TSJ of Madrid: since the company did not reprimand the employee for his conduct, the dismissal was “unexpected and disconnected from the tolerant attitude” of the management. . Therefore, it becomes inappropriate.

precautions

Bosses need to be careful. Arriving late, disobeying orders, or breaking workplace safety rules doesn’t always open the legal doors to dismissal. There are rules. First, the company must ensure that the operator’s attitude is serious enough. Second, management cannot fall into what is known in labor jargon as “corporate tolerance”.

The second occurs when a worker “commits recurring violations, but is not sanctioned,” explains Inmaculada Serrano, labor lawyer at Proluco Abogados & Economists. This attitude generates an expectation in the employee, who believes he is acting with the approval of his superiors when he arrives 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 commercial tolerance, it is vital that the company is aware of the behavior of the employee and allows it “in a consistent way over time”, explains Wilfredo Alberto Sanguineti, professor of labor law at the University from Salamanca. A different situation is that the worker hides his activity from his superiors. This was the case in a recent case prosecuted by the justice of Extremadura, 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. It was only when her superiors repeatedly caught her talking on the phone “in a very low voice” that they opened an investigation and fired her.

In which cases is an immediate dismissal justified? The answer lies in the Workers’ Statute (TE). Concretely, 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 insults”, “continuous and willful decrease in performance”, “violation of good faith”, “harassment” and “habitual drunkenness or drug addiction”.

However, “the reality is that sudden dismissals, with and without commercial 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 lawyer Inmaculada Serrano. Defining what constitutes serious conduct is a difficult task.

As Pedro Muñoz Lorito, CEO of Labe Abogados adds, the common point is that, given the lack of clarification of the status, “the agreements graduate the severity of the sanctions applicable in each case”, defining for example “what what is meant by reduction in volunteer performance”; or “when a breach of the schedule can lead to dismissal”, explains the lawyer.

The issue has resulted in numerous lawsuits. An example is a decision by the TSJ of Galicia, in which it rejects the dismissal of a clinic worker who does not constantly respect the schedule, but who has never been reprimanded by the supervisor with whom she coincided. In another sentence, the Madrid TSJ condemned a company for firing a worker who used the company car for personal purposes, a practice the company knew and accepted. And on the use of restaurant 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 behaviors with which it has previously shown permissiveness.

In short, the main thing, says Serrano, is that the employer “does not contradict its 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 vested rights (an email or a communication to the staff would do the trick). Only if after waking up the attitude persists, the company has carte blanche to move on.

Pending tasks in Spain

No law imposes on companies the obligation to notify an employee before being made redundant. Something that “happens with union delegates”, explains Wilfredo Sanguineti, professor of labor law at the University of Salamanca. There is some controversy over the issue, as Spain has signed an International Labor Organization agreement, Article 7 of which states that “a worker’s employment relationship shall not be terminated for reasons related to his conduct or performance before offering him the opportunity to defend himself.” Our country has not yet formally complied with this obligation. “Spain has recognized that it has to change its legislation, but for the moment it has not yet been done”, underlines the teacher.

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