Going to the beach, walking the dog or driving a motorcycle “do not reveal an activity that is contrary to a physical ailment of a worker that is objectified by diagnostic tests.” This is how the magistrate of the Social Court 4 of Gijón considers it in a judgment favorable to a commercial from a vehicle sales and repair company that was on medical leave when he received the letter for disciplinary dismissal. Now the company is obliged to reinstate him or compensate him with about 58,000 euros.
During his temporary incapacity, including hospital admission, the worker received a letter from his company informing him of the disciplinary dismissal for a very serious offense consisting of the breach of contractual good faith of article 54 of the Workers’ Statute and for simulation of illness or accident.
Previously, the company required the worker – with 20 years working at the dealership – to attend the trade fair despite medical leave. The commercial rejected his incorporation because the two herniated discs with entrapment of the sciatic nerve that he suffers prevent him from standing for so many hours.
In the dismissal letter, the company stated that the follow-up carried out by a private detective confirmed the employee’s ability to go to the beach and spread out a towel by bending his back, use a motorcycle scooter and walk the dog.
The magistrate considers in her sentence that the disciplinary power of the employer is justified in the protection of his own interests as part of the employment contract, but that it is not valid “the performance of functions of control of legality or public order and even less of the private life of the worker”, as was the hiring of a private detective. The labor mutual and the Labor Inspection are the competent bodies to monitor the health evolution of the employee, since they have access to the medical reports.
In disciplinary dismissals during medical leave, the employer must, first, verify that the worker in a situation of temporary disability cannot carry out the tasks of his position and, second, that “the activities of the worker during his sick leave are not inadequate to achieve their return to work as soon as possible” nor are they likely to disturb their healing.
The sentence considers that having gone to the beach, walking with the dog and driving a motorcycle, do not reveal an activity that is contrary to a physical ailment that is objectified by diagnostic tests. Nor does it prove a conduct that violates contractual good faith, and much less does it show that there was some type of simulation of a pathology, especially in this case when the worker continues under treatment and consultation, remaining in a successively confirmed temporary disability.
The magistrate considers the dismissal by the company as inadmissible, having to reinstate the worker with payment of the processing wages from the date of dismissal or, alternatively and at her choice, to the payment of compensation of 57,888 euros.
Consolidated case law
In relation to cases such as the Gijón commercial, the Supreme Court has established consolidated jurisprudential criteria in several sentences. Different judicial decisions of the High Court recognize that “not all activities carried out during the situation of temporary incapacity can be classified as unfair conduct punishable by dismissal”.
The only activity subject to disciplinary dismissal would be “which, given sufficient seriousness and intentionality and in view of the concurrent circumstances, especially the nature of the illness and the characteristics of the occupation, is likely to disturb the recovery of the worker or evidence his aptitude for work, with the consequent simulation to the detriment of the company”.
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