The Superior Court of Justice of Madrid (TSJM) has annulled the dismissal of a worker who carried out personal tasks and errands during his working day, finding that he also worked outside of his schedule, on weekends and holidays.
In a ruling dated March 1 to which EFE has had access, the social court rejects the appeal filed by the Avizor company against a July 2022 ruling from Madrid Social Court No. 43.
The case affects an Avizor worker who has been working as a salesperson since 2011, with a monthly salary of 5,466.28 gross euros plus 227.86 of remuneration in kind and working hours from 9:30 a.m. to 5:30 p.m. flexibility of entry and exit and including teleworking.
The worker carried out his work at times other than those established by the company, working before and after said hours, on weekends and holidays, as well as on vacations.
In November 2021, the company handed him a disciplinary dismissal letter in which he alleges that, after hiring a private detective to monitor the employee, it is proven that he does not carry out his work continuously at his home.
Among other things, the detective's report states that he takes and picks up his daughter at school, sometimes goes to the gym and/or paddle tennis, and meets someone for a drink, the company understanding that "such attitudes are not the that are required of him to carry out his work correctly.
The employee, for his part, claimed that these activities "have not caused any harm to the company", as evidenced by the fact that the objectives set for him are met 100%.
The nature of the commercial work includes work inside and outside of their schedule, points out the TSJM, and on many occasions the employee has worked at 6 and 7 in the morning, after their hours have ended and also on weekends and holidays .
It is not an "administrative or teleoperator or laborer" job, which involves being at your job station in a fixed manner and without moving throughout the day; on the contrary, it is a dynamic job that implies being aware of it throughout the day and that can be carried out perfectly in a vehicle, as seems to be the case, according to the detective's report, or even having a drink.
The TSJM also highlights that "mobile phones allow us to send emails from anywhere and at any time."
Although it is true that the employee "takes advantage of hours of his work in domestic chores, he also carries it out impeccably, or at least the company has not shown that he has missed any of his appointments" nor has it been accredited his resignation of functions. EFE