The Superior Court of Justice of the Canary Islands (TSJC) considers inadmissible the dismissal for disciplinary reasons of a home help assistant who on several occasions refused to wear a mask during the months of the pandemic, alleging that she suffered from agoraphobia, for not having heard prior to the works council, of which he was a member.
The Psychiatry Service Unit diagnosed that the woman had anxiety attacks every time she considered covering her mouth, at which time she suffered dizziness, asphyxiation and excessive muscle tension, making her a victim of this specific phobia.
For this reason, the woman considered that the dismissal should be considered null as it was discrimination due to her illness, among other irregularities such as not being able to present the evidence on time.
The company, however, justified the dismissal because the worker had committed certain “deliberate and serious” violations by “repeatedly” refusing to wear the mask despite having verified that she did so when she was outside of working hours.
For this reason, they accused the operator of committing fraud and denied having acted in a discriminatory manner given that they tried to adapt to the woman’s health conditions, to which she would have created certain obstacles.
In the first instance, the Court considered the dismissal “appropriate” and therefore he had no right to compensation, processing salaries and unemployment benefits, he would only receive 493 euros in salaries.
But it was then considered inadmissible by the TSJC given that no prior hearing was given to the works committee of which the plaintiff was a member and in this way the provisions of the Workers’ Statute were not complied with, which requires reporting within the deadline to the representation of workers.
Without going into the substance of the matter, the TSJC concludes that the dismissal is unfair but not void, so if she wanted to return to the company it could fire her again, at which time they would have to pay her almost 9,000 euros.
The company recounted other episodes to justify its decision, such as that when the assistant was on sick leave, she was forced to go to medical check-ups with a mask, which she refused, so the doctors who were supposed to recognize her refused to treat her.
The woman presented a letter from a Primary Care doctor in which it was recognized that she suffered from agoraphobia and anxiety due to the obligation to use this preventive measure.
There were several times in which the worker served people in their homes, without wearing a mask, as demonstrated by several inspections, which resulted in sanctions or suspensions of employment and salary being imposed that never worked until she was fired. at the end of 2021.
Previously, the company hired the services of a detective who certified that the woman wore a mask in certain cases, such as when she entered a supermarket or went to buy lottery tickets.
The Court considers that, indeed, due to the latter, the worker exaggerated her symptoms given that the result of the surveillance would not fit with the supposed severity of the illness.
Added to all this are facts such as the diagnosis of agoraphobia being too generic to the point of suspecting that the disease is not real, as psychiatrists would have determined if they had known that in certain cases they had no problems wearing the mask.
