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 the Efe agency has had access, the social court rejects the appeal filed by the Avizor company, for eye care products, against a July 2022 ruling by the Social Court No. 43 of Madrid.
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. with entry and exit flexibility 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 took his daughter to and from school, on occasion went to the gym and/or paddle tennis, and met 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 . Occupying the position of key account manager, his functions consisted of defining and executing the commercial policy in large accounts in Spain and Portugal, attracting new clients, finding new business opportunities or managing budgets.
The Tribunal understands that 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 involves being aware of it throughout the day and that can be carried out perfectly in a vehicle, as it 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. “The involvement in his work is demonstrated by carrying it out outside his hours,” he argues.
