The Superior Court of Justice of Madrid (TSJM) has ratified in a ruling that calling a superior “asshole” is not grounds for disciplinary dismissal, if it is a “concrete and isolated” insult in a specific context. This is what the judicial body has ruled in response to an appeal filed by the company Ahumados Nord Fish for unfair dismissal of an employee.
The origins of the case lie in a worker who called his superior an “asshole” when she asked him to stay after finishing his work day to attend a meeting. In the ruling, the judicial organization has justified that the event itself does not have “the seriousness and guilt component” necessary to proceed with the dismissal.
In May 2023, the company called a meeting with the entire workforce at 2:55 p.m. to provide certain information from the quality department. However, one employee realized that his workday ended at 3:00 p.m. and that he was therefore leaving, as he was also in a hurry for personal reasons.
For her part, the administrator warned him that he could be sanctioned for disobedience, taking into account that he had already enjoyed 15 minutes of rest. Even so, the worker, who had already been punished on other occasions, replied “let’s see if you dare, asshole,” and left slamming the door.
As a consequence, the company notified a letter of dismissal for verbal offenses to the employee who, in response, filed a lawsuit against the company for unfair dismissal.
The Social Court 31 of Madrid ruled in favor of the worker and sentenced the company to immediately reinstate the employee, or compensate him with 23,541 net euros. In the event of reinstatement, the wages not paid since the dismissal should be paid in April 2023.
The company, dissatisfied, presented an appeal to the TSJM, but it, in turn, ratified the first sentence. The Chamber asserts that it is necessary to demonstrate that it is “a serious and culpable breach, since dismissal, being the most serious sanction in Labor Law, requires a restrictive interpretation, and may, therefore, and where appropriate, sanctions other than dismissal may be imposed.
In response to the reproach made by the company, the magistrates state that the context in which the events occurred must be assessed. As well as the concurrent objective and subjective circumstances, among which it stands out that “when the worker is required to be present at the company facilities, he had already finished his work day and was in a hurry for personal reasons.”
“Although when the actor’s response and the forms used when addressing the administrator were intemperate, rude and rude (…), he left slamming the door, they do not have the gravity and the element of guilt necessary to justify his dismissal,” they conclude.
