IS ABSENTEEISM FAIR OR UNFAIR DISMISSAL?
The Ruling of the High Court of Justice of Aragon 437/2024, of 3 June 2024 finds, surprisingly, that the disciplinary dismissal of a waiter who was absent from work for three consecutive days constitutes unfair dismissal.
The employee, who worked as a waiter and lived 15 km from his workplace, had notified his employer on 5 November that his vehicle was in the garage and that, due to the high cost of a taxi, he was unable to travel to the hotel where he worked.
On 16 November 2022, the employee received a burofax (a certified postal communication) informing him that his employment had been terminated with effect from 9 November 2022, on the grounds of his absence on 7, 8 and 9 of that month.
At first instance, the dismissal was declared fair with effect from 9 November 2022. However, on appeal, the High Court of Justice of Aragon declared the dismissal unfair, granting the employer the option to reinstate the employee or pay the statutory severance compensation.
Written by Alessia Macchia
Graduate in Labour Relations
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INABILITY TO ATTEND WORK
In this case, the High Court of Justice of Aragon argued that the employee's conduct did not reach the level of seriousness required to justify a disciplinary dismissal, given that he had given prior notice of his inability to attend work due to circumstances beyond his control.
Although the company was under no obligation to provide the employee with a means of transport, it failed to give adequate consideration to the employee's situation. Rather than proceeding with dismissal, the company could have taken a more "flexible" approach, such as suspending the employment relationship and withholding pay.
The Court also found that the company had breached Article 7 of ILO Convention No. 158, which requires that a prior hearing be held, giving the employee the opportunity to put forward their explanation.
disciplinary dismissal for Unjustified Absences from Work
Most collective bargaining agreements in Spain provide that three unjustified absences may constitute grounds for disciplinary dismissal. It is important to bear in mind, however, that before issuing notice of dismissal, the company must invite the employee to a prior hearing at which the employee may present their submissions. This procedure is governed by Article 7 of ILO Convention No. 158.
It is also essential to consider the seriousness of the conduct when applying the principle of proportionality, which requires that there be a reasonable correspondence between the infringement committed and the sanction imposed, thereby avoiding unnecessary or disproportionate measures. Equal application of the law is likewise a key principle to bear in mind in any disciplinary dismissal process.
Indeed, the Supreme Court has emphasised that like cases must be treated consistently, ensuring there is no disparity in judicial decisions on dismissals arising from comparable circumstances.
Conclusions
Most collective bargaining agreements in Spain provide that three unjustified absences may constitute grounds for disciplinary dismissal.The severity of the conduct must also be taken into account: the court will apply the principle of proportionality to assess whether the facts are serious enough to justify terminating the employment relationship.
It is important to bear in mind that every case of disciplinary dismissal must be assessed on its own merits, taking all relevant circumstances into account and ensuring that the required legal procedures are followed.
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