Furthermore, it is known that carrying out a disciplinary dismissal that is classified by the labour jurisdiction as fair is not a simple task, as our courts consider that the failure to comply attributed to the worker, depending on the circumstances of each case, must be marked by the highest level of gravity possible in order to consider as proportional and lawful the imposition of the maximum penalty, the loss of employment, where the affected worker is not entitled to receive any compensation.
In light of the foregoing, let us examine Ruling 476/2020 of 30 November of the Supreme Court of Extremadura, which ratifies the decision in Ruling 155/2020 handed down on 7 September 2020 by the Labour Court of Cáceres, which declares the fairness of the disciplinary dismissal of two workers for having abused their privilege to use a work telephone.
For this purpose, we must start with the premise that, according to the Sixth Proven Fact of the ruling handed down in the Court of First Instance, the company had prohibited the personal use of the professional devices made available to the workers. In order to supervise effective compliance with this rule, the company made its staff aware that it could carry out any supervisory actions necessary. Furthermore, the company prohibits the use of one’s personal telephone during working hours.
Consequently, and faced with suspicions of the worker’s supervisor observing that she spoke on the telephone repeatedly and in a low voice during her working hours, the department of human resources of the company initiated an investigation which found that the workers (Legal Ground Eight of the First Instance ruling):
- During the month of September 2019, spoke on 20 working days using the landline of the company for 11 hours and 47 minutes, with an average of 7-8 calls per day. For six (6) days, each call exceeded 50 minutes.
- In October of the same year, they spoke 14 hours and 45 minutes. There were three (3) days on which said calls exceeded 55 minutes.
- Until 21 November 2019, the workers spoke to one another during working hours for four (4) hours.
Once these infringements were found, the company, after initiating the disciplinary proceedings against the two workers involved, proceeded to fire them with disciplinary dismissals. This was reviewed by jurisdictional bodies since the plaintiffs’ aim was for the dismissals to be declared null and subsidiarily unfair.
Therefore, paying attention to the facts and the evidence presented, as well as the case law applicable to the proceedings, the First Instance judge upheld the fairness of the dismissals with the following arguments:
- Neither maternity nor union activity of the workers was the cause of dismissal, and thus their attempt at nullity was unsuccessful;
- The classification of the non-compliance (breach of contractual good faith or disobedience at work) is correct, as it was not a momentary situation, but permanent, which, further still, is carried out almost clandestinely and for a more-than-prolonged period of time, where it constituted almost a habit of the workers despite having been warned previously by the company;
- The company at no time consented to nor tolerated such behaviour, so that there is no breach of Article 14 of the Constitution.
Unsatisfied with the decision, one of the workers filed the corresponding appeal (recurso de suplicación), requesting the review of the facts proven and denouncing the breach of Articles 14 and 18 of the Spanish Constitution, as well as Articles 54 to 56 of the Workers’ Statute. Having seen the reasons alleged by the appealing party, the Supreme Court of Extremadura dismissed the appeal presented and upheld the decision and, as such, the fairness of the dismissal as ruled by the Labour Court of Cáceres.
In light of the foregoing, we see how the courts back both the capacity of the business owner to use supervisory measures that it deems fit pursuant to Art. 20.3 of the Workers’ Statute and its disciplinary capacity when penalising serious and culpable breaches with dismissal.