A conflictive boss gets rid of the dismissal because the company did not sanction him in time | My Rights | Economy


Office of a company in Barcelona.  Susanna saez
Office of a company in Barcelona. Susanna saez

Getting into fights and berating subordinates with bad manners is not enough to justify firing a boss. Not, at least, if the company is permissive and ends up expelling the manager months after the events occurred. This has been dictated by the Superior Court of Justice of Madrid in a sentence, where it confirms the inadmissibility of the dismissal of the area manager of a company because the sanction arrived outside the term established by law.

According to the ruling (available here), the operator held a position as department head in a Madrid company. In the correspondence that he exchanged with his companions, it is possible to read phrases such as “if you buy a thoroughbred, do not compare me with the rest since I am not like them”, “please, do not waste time (and most importantly, make us lose it to us) “, or” you are not the one to tell me anything and teach me less “.

The tense attitude he created around him was the talk of the squad for a while. According to the sentence, an operator refused to talk to him “because he raises his voice on the phone and can no longer bear his forms.” Another employee thought “that in the end no one will want to work with him” and that “it cannot be that his colleagues are afraid of him.”

A chief of staff ended up reproaching him for his attitude and called on him “not to enter into judgments” about other employees and to respect “the work of others.”

Isolated facts

The magistrates value the manager’s outbursts as isolated events. Not as “a continuing offense characterized by the performance of a plurality of actions” or a “preconceived plan.”

Thus, for the Chamber, the statute of limitations begins when each of the events occurs. Thus, the company charged the employee with several offenses of “intimidation and / or abuse of authority”, “situations of harassment and psychological violence to his subordinates” and “frequent fights and quarrels”.

However, the Supreme Court concludes that most of these events have been prescribed, after more than two months have elapsed since the company knows its commission until the dismissal letter is issued. Only two emails are on time. And on these letters, the Madrid court values ​​that the chief’s statements “may be more or less correct”, but in no case “are they constitutive of a serious breach.”

Tolerance

The Workers’ Statute establishes that minor absences by employees prescribe after ten days; the serious ones, after 20 days, and the very serious, after 60 days, from the date the company learned of its commission.

Ainara Del Valle, a labor partner at Mithra Legal Advisors, explains that the case is judged “if the facts that are recorded in the dismissal letter are prescribed.” Given that behaviors that the judge understands as specific are imputed, “they can only take into account two behaviors of the dismissed person that are not considered so serious as to justify the dismissal” (because they occurred less than two months in advance from the dismissal letter) . “In short, and in a few words, the prescription has made them lose the case,” the lawyer values.

For its part, the company defended itself by claiming that they had warned the conflicting employee “in different ways and by different people”, so that he could modify the forms and the treatment given to his colleagues.

The magistrates, however, consider that the company waited too long between the warnings and the dismissal letter, which gave rise to a certain degree of tolerance. As the lawyer Del Valle explains, permissiveness can pose a problem when it comes to sanctioning workers who get used to committing infractions and are never reprimanded. The expert gives the example of the worker who is always late: “If we go from a few minutes to half an hour, but when the company finds out it does nothing and allows it for a long time, it can be argued that the behavior was tolerated.”

In these cases, he adds, “it is very important to demonstrate that, indeed, the worker has carried out the offending conduct.” Dates are essential. “It is necessary to sanction within the limitation period or the possible claim against the sanction will be lost,” he asserts.

In this way, the Madrid Supreme Court condemns the company to choose between reinstating the manager under the same conditions and paying him the wages pending until the sentence; or, pay you a compensation of 91,652.95 euros.



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