The High Court of Justice of Castilla y León has confirmed the validity of the dismissal of a worker who greatly exceeded his telework break times and persisted in his attitude despite being warned by his superior to reduce the duration of such breaks.
The worker was informed that monitoring would be carried out to control and audit the calls, in order to help him improve his production data.
The Social Division of the High Court of Justice of Castilla y León has confirmed the validity of the dismissal of the worker who greatly exceeded the rest periods for teleworking and persisted in his attitude despite being warned by his superior to reduce the duration of such breaks.
In mid-March 2020, due to the health emergency caused by the spread of Covid-19, the worker (tele-operator) signed a teleworking agreement with his employer.
According to this agreement, the worker was entitled to a total of 10 minutes of regular breaks during his working day and a total of 7 or 8 visual breaks of five minutes each, for each hour of work. In addition, exceptionally, he could take other breaks to make pending calls or deal with a client.
The worker was informed that monitoring would be carried out to control and audit the calls, in order to help him improve his production data.
In September 2021, after the employee’s rest periods were significantly above the average for the service and the company had warned him on several occasions that he should reduce his break times, the company gave the employee a letter of dismissal on disciplinary grounds.
According to the employee’s opinion, the misconduct imposed was not a criminal offence, since the conduct detailed in the letter of dismissal could in no way be considered as indisciplinary behaviour constituting a breach of contractual good faith.
However, in February 2022, the Salamanca Social Court No. 1 dismissed the claim brought by the employee’s representatives and ruled that his dismissal was justified. Specifically, in the opinion of the Magistrate-Judge, “it is clear that the plaintiff’s conduct constitutes disobedience punishable by law, since despite repeated requests by the company to reduce his rest time and above all to request the necessary authorization, he persisted in his attitude”.
Now, in its judgment of 9 May 2022, the Social Division of the Supreme Court of Castile and Leon dismisses the appeal filed by the employee and rules that the termination was justified.
In this case, the SCJ reasons that the appellant’s conduct constitutes punishable disobedience, since despite repeated warnings from the company for the employee to considerably reduce his break times and, above all, to request the necessary authorization, he persisted in his attitude.
In the words of the Labour Division, “it seems clear that there is indeed a manifest breach of discipline because the appellant persisted in his conduct despite the warnings given by his superior and because he persisted in his behaviour, not only by exceeding his rest periods, but also by using them improperly, without taking any action, and above all without seeking prior authorization even though he knew that it was required”.
Consequently, such “persistent and repeated” conduct by the employee in breach of the employer’s orders means that the breach examined here is classified as a manifest breach of discipline which constitutes a very serious offence in accordance with art. 66.4 of the 2nd State-wide Collective Agreement for the contact center sector.
For further information, please contact Labour counselling.
