Each year, the courts issue dozens of decisions on the dismissal of workers who have been caught performing various activities while on sick leave. Normally, these sentences monopolize the attention of the media not only because of the picaresque nature of their protagonists, but also because they are, at times, contradictory to each other and pose a challenge to common sense.
Without going any further, just a month ago, a court in Palencia endorsed the disciplinary termination of an employee on leave due to tendonitis who continued to go to the gym every day to practice all kinds of physical exercises.
Among them, chin – ups and crossfit sessions . The decision contrasts with a previous ruling, by the Palma Court, which declared the dismissal of a workshop operator suffering from torticollis who competed as a pilot in a rally inadmissible .
Many wonder how justice can reach such different conclusions on relatively similar assumptions: is participating in a car race with a collar less serious than lifting weights with a dislocated shoulder?
Álvaro San Martín, labor lawyer at the Casadeley law firm, affirms that the Workers’ Statute (ET) does not really establish the limit between what is acceptable and what is prohibited.
Rather, the norm is limited to leaving the door open to the disciplinary termination of any employee who breaks the contractual good faith, “an undetermined legal principle, related to loyalty and that, after all, works like a mixed bag ”. As if this were not enough, the Supreme Court has not unified jurisprudence in this matter, since “each case is a world and is not comparable with a previous one.”
The lack of legal definition does not mean that there is legal uncertainty or that each judge can make a coat out of his coat. In fact, Pere Vidal, lawyer and professor of Labor Law at the Open University of Catalonia (OUC), points out that the high court has been defining, over the years, a consolidated jurisprudential line, according to which people in In a situation of temporary disability, they can carry out different daily activities, as long as they do not affect their healing process, or show their ability to work.
The lawyer emphasizes that this rule, “which seems quite obvious”, gives rise to very different resolutions, and even opposing ones, depending on the ailment and the labor sector. Likewise, for it to be understood as being violated, it must be proven that there was fraud (will to deceive) or negligence.
Companies try to connect the dots by hiring private detectives and medical specialists when they suspect that fraud may have been committed, although sometimes they do not even need to carry out costly investigations because it is the worker himself who is in charge of revealing his good health.
This is precisely what happened to a national policeman who was sanctioned with two months of suspension of employment and salary after posting several photos on social networks. In the images, he was seen running and cycling during a medical leave for a dislocated arm.
The Superior Court of Justice (TSJ) of Madrid concluded that, although physical exercise was not expressly contraindicated for the agent’s rehabilitation, it was not recommended due to the risk of relapse and worsening of his injuries.
Now, not all cases are so obvious. As San Martín reveals, labor fraud lawsuits can be extremely difficult to resolve, especially when subjective factors such as pain or psychological disorders are discussed . “What comes into play here are the expert reports that determine whether or not the behavior in question was compatible with the alleged injury or illness,” he reveals. That is, everything will depend on the opinion of the doctors and, in case of doubt, the balance will tilt in favor of the worker due to the application of the presumption in dubio pro operator.
In this sense, the ruling of the Superior Court of Justice (TSJ) of Catalonia stands out, which, in 2014, agreed with a woman diagnosed with depression who was fired for going on vacation for a few days with her family. According to the magistrates, the plaintiff’s attitude was not only not fraudulent, as the company claimed, but it “evidenced her willingness to recover.”
A similar argument was made by a teleoperator from A Coruña who decided to travel to her hometown to spend a time with her family, a few days after being diagnosed with an anxious depressive picture. The Supreme Court of Galicia declared, this time, the origin of the dismissal when it was shown that during her convalescence the plaintiff worked for several days at her sister’s travel agency.
“It is true that judges tend to opt for workers when there are doubts about the damage to the company, although they do not tolerate deception in any way,” says Vidal, who insists on differentiating simple imprudence from flagrant fraud. And it is not the same, he asserts, having a disease and skipping the recommendations of doctors than faking it to obtain an economic benefit (a benefit, an extra salary …).
The intent behind each offense will make the difference between a simple forced discharge and a sudden dismissal that also entails the loss of disability benefits. Regardless of the indications, the experts consulted consider it advisable that, before taking any action, the company offers the employee the opportunity to explain himself to avoid misunderstandings and, above all, possible legal surprises.