Dismissal of worker in Spain who advertised himself as a web designer on Instagram while on sick leave due to anxiety confirmed
The Social Division of the High Court of Justice of Castilla La Mancha (TSJCLM) has declared the dismissal of a worker who, while on sick leave for anxiety, was discovered by detectives advertising on Instagram as a web designer and developer.
Judgment 26/2023 of 13 January was handed down by judges Juana Vera Martínez, José Montil González and María Isabel Serrano Martínez.
The worker had been working for the company Luis Miguel Barrios S.L. since July 2021 in the professional category of labourer. In November of the same year, he took medical leave due to a common illness for reasons related to anxiety.
The owners of the company began to have suspicions that the employee was carrying out other work during the time he was on temporary disability, so they hired a detective for three weeks to follow his activity.
The detective’s report concluded that the dismissed worker’s name was associated with a page found on Instagram where he advertised himself as “web designer and web app developer in Toledo”, information which was accompanied by a URL.
MET ON THE PHONE AND SENT A QUOTE TO THE DETECTIVE
The detective wanted to set him up to confirm her suspicions. She contacted the employee by phone and asked him for a quote to design an alleged soap website.
They then had a WhatsApp conversation in which he told her that before giving her a quote, they would have to have an online meeting to show her some ideas. He finally gave him a quote of 1,200 euros.
In March 2022, the worker received a burofax from the entity in which he was told that he had to go to the company’s offices because they knew that he had been working for another company for some time.
Once at the headquarters, the lawyer and the partner of the company explained to him that they had proof of this and gave him the friendly option of leaving voluntarily, but he refused. He insisted that he had not provided any other services during his temporary incapacity.
In April 2022 he received a burofax finally informing him of his dismissal on disciplinary grounds. It was explained to him that he had committed an offence classified as a very serious offence under Article 42.3 of the Toledo Metal Workers’ Collective Bargaining Agreement.
QUALIFIED AS “VERY SERIOUS” MISCONDUCT IN THE TOLEDO METAL COLLECTIVE BARGAINING AGREEMENT
This article states that it is a “very serious” offence if, when a worker is on sick leave, he/she carries out work of any kind for others or on his/her own account.
But after his dismissal, the worker decided to sue the company. The case went to the Social Court No. 1 of Toledo, but it did not uphold the case and considered his dismissal to be appropriate. Not being satisfied with the judgment, he decided to appeal to the TSJCLM.
The latter argued that the appealed judgement did not prove that she had carried out work of any kind on her own account or on behalf of others and that it was not demonstrated that this activity delayed or hindered the cure of her anxiety.
However, the judges stated that the aforementioned proven facts, which coincide with those alleged in the letter of dismissal, are perfectly subsumable in the infringement provided for in art. 42.3. d) of the collective bargaining agreement.
They therefore considered it “unnecessary” to examine whether the work she carried out on the Internet could have a negative influence on her recovery of her working capacity. What is important in this case is that the collective agreement classifies the mere fact of working during the period of sick leave as very serious. They have therefore confirmed that the dismissal is justified.
