The High Court of Justice of Asturias declared the dismissal of an ophthalmologist who repeatedly arrived late at the clinic where she worked to be unjustified. Despite the fact that the worker was late practically every day for two years, arriving and leaving before departure time, the court considers that the dismissal of the worker was unjustified. sanctioning measure is grossly disproportionate taking into account that he was never reprimanded or sanctioned.
The company has a registration system, so that the company was in a position to know at all times about the lack of punctuality, but she tolerated it and was never reprimanded by the company before the letter of dismissal was issued.
A disproportionate measure
In order to declare whether or not the sanction is appropriate or inadmissible, a judgement must be made as to the nature of the misconduct attributed and a value judgement is also required as to the seriousness of the worker's sanction and, above all, an analysis of proportionality.
If the alleged conduct is typified and qualified as very serious misconduct, as a general rule, dismissal is considered a proportionate response in the collective agreement in question, as it reflects the seriousness of the breach.
There were no prior warnings
A total of 176 absences were recorded over a period of six months. The applicable agreement (the agreement of Hospitalisation, Consulting, Assistance and Clinical Analysis Health Establishments of the Principality of Asturias), establishes that with regard to punctuality, it is considered a very serious offence if there are ten unjustified absences within a period of three months or twenty within a period of six months, and a repeat offence is considered a serious offence within a six-month period if there has been a written sanction.
In this case, there was no prior written sanction and the dismissal was communicated to him without prior warning, requirement or communication for lack of punctuality and the agreement does not authorise sanctions with dismissal that include minor or serious misconduct, nor does it authorise raising repeated misconduct that has not been previously sanctioned to very serious misconduct.
The judgment explains that the company only sent an email to the workers with the "Rules of the Centre" and did not say anything about non-compliance with the working hours, nor did it call attention to the employee.
This action is an unexpected reaction, disconnected from the tolerant attitude, says the court, which until then had been maintained and which reveals that the company did not consider the worker's behaviour relevant, which makes the dismissal a response that was not correctly measured, since the company from tolerating the worker's unpunctuality to firing herwithout first going through the previous stages of sanctioning for minor or serious misconduct.
Furthermore, the magistrates warn that there is no proof of concrete damage to the company or to other workers, and that the harm alleged in the letter of dismissal is entirely generic.
For all these reasons, the Chamber declared the dismissal to be unfair and ordered the company to reinstate the worker in the same job and under the same terms and conditions in force at the time of dismissal, or alternatively, and at its option, to compensate her with the total amount of 24,987.38 euros.
At Confijulab we can advise you on the work environment so that you know your rights and the conditions to which you are entitled.
Source: Legal news
