The High Court of Justice of the Valencian Community (TSJCV) has ratified the cancelation of the dismissal of an emergency health technician, representative of the works council, accused of using union hours to work in other companies and who was investigation for one detective private. It is based on the fact that he was also monitored outside of working hours and therefore the report is not valid.
Thus, the Social Chamber of the Superior Court of Valencia rejected the resource of call filed by the trade against the previous decision of the Social Court number 1 of Castellón de la Plana, which, in addition, ordered the company to pay the wagesnot perceived by the employee since his dismissal plus one compensation of 12,000 euros considering that a violation of fundamental rights has taken place. He also asked to compensate the UGT, the union representing the worker, with 1 euro.
This happened in October 2022, when the company notified the complainant of the dismissal letter claiming that he was taking advantage of union credit to carry out a professional activity in another company, which he described as “fraud”.
The company, which hired a detective to carry out monitoringassured: “It so happens that you are precisely a member of the works council, particularly demanding, who demands that the company respect the law, as it should, with particular enthusiasm, and yet the company has reliable evidence that the use of their union credit is for their own benefit and not for the rights of their colleagues.
The court’s decision referred to the right of freedom of association recognized in Article 28.1 of the Constitution and recalled, among other things, that affiliation cannot be the cause of an attitude contrary to the worker or favorable to his interests.
However, in a new ruling dated September 12 and consulted by Europa Press, the TSJCV considers that the judge assessed the report detective provided by the company, “even though he considered that did not cover THE requirements validity necessary for various reasons.
Among them, the company did not inform the detective of the days of use of the union credit or when he would benefit from vacations and days off for his own company, “so that said control, carried out for 12 days, even if it did not infringe on the worker’s right to privacy since it did not take place in spaces reserved for this purpose, the investigation deserves to be considered an act of interferencebecause it is disproportionate.
The judge also did not see “any proven data that would allow the existence of particular circumstances to be deduced that could have led the company to suspect that it was making abusive use of the hourly credit for its own benefit”. Similarly, he stressed that “the control of the complainant’s activity was carried out out her working hours and during periods when he was not subject to any professional discipline, such as during holidays, permits and breaks.
At this point, the Chamber stresses that the investigation report “must be considered as a piece of testimonial evidence which was precisely what was practiced at trial and was therefore considered and analysed by the trial judge in his sentence, and not as a document.”
“The magistrate therefore – they continue – evaluates this evidence, which is nothing other than a documented testimony and, using her sovereign power, she sets it aside to establish the data that must be included in the story obtained from other sources, which is not the reasoning. whether it is absurd, unfounded or irrational, although we do not agree with the conclusions that concerning their nullity by offense of fundamental rightscontains the sentence, so that the qualification of its content remains within the pure framework of the assessment according to which, as an element of proof, it is supposed or not in the case, subject to the discipline of an informed criticism.”
In any case, the judgment, against which an appeal is possible, summarizes, “it is not even formally possible to declare the nullity of the actions brought on the basis of this decision, especially when the company does not articulate this complaint as a violation of the procedural rules.” which could lead to the results of the indicated declaration of nullity, a final appeal which, on the other hand, is only claimed in a subsidiary manner in the request contained in your document and which in any case has not been duly channeled in the appeal.
For all these reasons, the TSJ rejects the appeal and orders the company to pay the costs.
