Cancellation of the dismissal of the worker who played paddle tennis and came to pick up his daughter during working hours

The Madrid judiciary overturned the dismissal of a worker who performed personal tasks during the working day, e.g. play paddle tennis or pick up your daughter from school. This was established by the Supreme Court of Justice in Madrid (TSJM) when it confirmed that this employee worked outside his schedule, on weekends and holidays.

In a ruling dated March 1, accessed by EFE, the social court rejects the appeal filed by Avizor against the July 2022 ruling.

The case concerns an employee of this company who has been working as a saleswoman since 2011, s monthly salary of 5,466.28 euros gross plus 227.86 compensation in kind and work schedule of 9:30 a.m. to 5:30 p.m., with flexibility of entry and exit and including remote work.

The worker performed his work at a time that was not determined by the company, working before and after the specified hours, in on weekends and holidays, as well as holidays.

In November 2021, the company gave him a disciplinary dismissal in which he states that, after he employed a private eye for the supervision of the employee, it is proven that he does not perform his work continuously at home.

Among other things, the detective’s report states that he took his daughter to and from school, that she sometimes went to the gym or to play rowingand stayed for a drink with one person, and the company realized that “such attitudes are not what is needed to perform the job correctly”.

The employee, for his part, claimed that these activities “did not cause any damage to the company”, which is proven by the fact that the goals set for him were met 100%.

The nature of commercial work includes I work on and off the clocksays the court, and often the employee worked at 6 and 7 in the morning, after the end of working hours and on weekends and holidays.

It is not an “administrative or teleoperating or laboring” job, which involves constant presence at the workplace and no movement during the day; on the contrary, it is a dynamic work which entails being aware of it throughout the day and which can be perfectly spent in a vehicle, it seems according to the detective’s report, or even while drinking. TSJM also emphasizes that “mobile phones allow us to send e-mail from anywhere at any time.”

Although it is true that the employee “uses his working hours to perform household chores, he performs them flawlessly, or at least the company did not show that he missed any of his appointments”, nor was his resignation attributed to him.