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Dismissal is a delicate situation that can be overwhelming for any worker.

When facing a dismissal and the associated legal and extrajudicial procedures, it is crucial to have the support and guidance of a law firm specializing in labor law.

From the firm, we can provide legal guidance, representation, and defense in case the dismissal is considered unfair or discriminatory.

In a recent ruling, the Superior Court of Justice of La Rioja, STSJ LR 398/2023 – ECLI:ES:TSJLR:2023:398, upheld the termination of the contract of a maintenance employee of a meat company for committing a very serious labor offense, as determined by the Social Court 3 of Logroño. In other words, it confirmed the validity of the company’s decision to dismiss the employee.

The decision states that on July 19, 2022, the employee received a letter informing him of his disciplinary dismissal for violating the contractual good faith and abusing trust when he was discovered inside the company’s premises outside of working hours, accompanied by an unauthorized person, attempting to take materials without prior authorization.

The employee’s defense argued in the appeal that his behavior was not severe enough to justify dismissal.

However, the Court points out that each case is individually analyzed in practice to determine the appropriate penalty, taking into account the worker’s previous employment relationship and the absence of prior sanctionable reasons.

Therefore, the Court supports the decision of the trial judge, considering that the employee abused his access to the company’s premises by attempting to take valuable materials without prior authorization, constituting a violation of contractual good faith and an abuse of trust justifying his dismissal.

The ruling is interesting for its jurisprudential review of the gradualist theory:

The Supreme Court’s jurisprudence regarding the gradualist theory of dismissal requires maintaining a proper proportionality between the penalty and the sanctioned conduct. It must adhere to the seriousness of the offense and the personal and professional circumstances of the perpetrator, given the subjective nature that characterizes it. This is in accordance with fundamental principles of justice, which demand a perfect proportionality between the act and its penalty, seeking the true legal reality that arises from their conjunction. This is reminiscent of recent Supreme Court judgments of November 13, 2000, or May 24, 2005, emphasizing that the infractions stipulated in Article 54.2 of the Workers’ Statute to justify dismissal must reach sufficient levels of culpability and gravity, requiring individualized analysis of each conduct, considering the circumstances that shape the act, as well as those of its author, as only from this perspective can the proportionality of the penalty be appreciated.

Reference is made to the statements in Supreme Court judgments of July 17, October 31, and November 17, 1988, January 30, 1989, February 28 and April 6, 1990, May 16, 1991, and November 10, 1998, recalling how “disciplinary dismissal requires full proof of an action or omission by the worker that is serious, culpable, and classified by labor regulations; requirements for whose assessment all subjective and objective aspects must be considered in a particularized manner, taking into account the background and contemporaneous circumstances that define the employment relationship as a continuous relationship over time; therefore, identical facts can be treated differently depending on the concurrent subjective and objective circumstances.”

Having been declared in numerous judgments that “the adjudication of dismissal must be approached gradually, seeking the necessary proportion between the offense and the penalty, and applying an individualizing criterion that assesses the peculiarities of each specific case.”

The use of the gradualist criterion must, however, be harmonized with the employer’s authority to impose the penalty deemed appropriate within the limits established by the regulatory framework of offenses and penalties (former STS of October 11, 1993; among others). Thus, the proportionality judgment cannot be applied in the same way in cases where the penalty type allows (by its own content) greater freedom in the graduation of the specified conduct than in those where a number of “unjustified” absences reach the minimum threshold stipulated in collective bargaining.

In practice, each specific case tends to be individualized to apply the solution considered most suitable, meaning a certain modulation of the employer’s sanctioning capacity in cases where the underlying facts of the penalty intersect with a prolonged employment relationship where there has been no previous reason for sanction or warning to the worker.

Therefore, and in accordance with the aforementioned, taking into account that dismissal, being the most significant and serious among possible penalties, must be reserved for cases of serious and culpable breach of the employment contract in terms of a significant violation of a duty of conduct.

Also, as it establishes the general requirements for the validity of a disciplinary dismissal, although the specific case must be evaluated:

1. The general principle of good faith is an essential part of the employment contract, not only as an interpretative canon of the parties’ will reflected in consent but also as a source of integration of the normative content of the contract. Additionally, it constitutes a principle that conditions and limits the exercise of the subjective rights of the parties so that it is not carried out unlawfully or abusively, causing harm or risk to the interests of the other party, but rather adhering to the rules of loyalty, probity, and mutual trust. Finally, this general principle of good faith becomes a criterion for assessing behaviors to which the fulfillment of reciprocal obligations must conform, and therefore, the duties of acting or executing the contract in good faith and mutual fidelity or trust between the employer and the worker become a requirement of ethically protected and enforceable behavior in the contractual sphere.

2. The transgression of contractual good faith constitutes a breach that admits different gradations in order, particularly in its objective severity, but when it is serious and culpable and carried out by the worker, it is a cause justifying dismissal. This occurs when the fidelity and loyalty that the worker must have towards the company are broken, or the duty of probity imposed by the employment relationship is violated to avoid betraying the trust placed in the worker, justifying that the company cannot continue to trust the worker who engages in abusive or contrary conduct to good faith.

3. The absence of harm to the company or the limited importance derived from the worker’s reproachable conduct, on the one hand, or, on the other hand, the non-demonstration of the existence of personal gain for the worker, is not relevant in itself or in isolation to justify the unethical behavior of the offender. For such qualification, it is sufficient for the breach of the duties of good faith, fidelity, and loyalty implicit in any employment relationship, although, along with the rest of the concurrent circumstances, it can be taken into account as one of the factors to consider in the evaluation of the seriousness of the offense, with greater or lesser evaluative significance depending on the objective severity of the proven facts.

4. Similarly, the absence of a specific intent on the part of the worker to behave disloyally is irrelevant and with the same evaluative scope, not requiring that the worker has wanted or not, consciously and voluntarily, to violate the duties of loyalty. It is sufficient for the classification of the offense that there is a serious and culpable breach, even if it is due to negligence, of the duties inherent in the position.

5. The duties of good faith, fidelity, and loyalty must be more strictly observed by those who hold positions of trust and leadership in the company, based on the greater confidence and responsibility in the performance of the conferred powers.

6. In general, as must be done in the assessment of the “seriousness” concerning the other offenses that may constitute grounds for a disciplinary dismissal, being such penalty the most serious in labor law, a restrictive interpretation must be made. It may be judicially determined that the employer is empowered to impose penalties other than dismissal if, upon examination of the concurrent circumstances, the imputed facts, while deserving of sanction, do not warrant the most severe penalty, such as dismissal, as the proven facts, in relation to the concurrent circumstances, do not present such intensity of severity or possess as much significance as to justify the dismissal.

7. Also, in cases of transgression of contractual good faith and abuse of trust in job performance, “articulated as grounds for disciplinary dismissal, the mere existence of the transgression or abuse is not enough to declare the justification of dismissal. It is equally necessary, as in other cases of contractual breaches, that it can be classified as a “serious and culpable breach by the worker.” Therefore, as a rule, the concurrent circumstances can be considered to aggravate or mitigate the worker’s conduct, which will have greater or lesser evaluative impact depending on the objective severity of the proven facts.

As a result of the above, the judgment of the Social Court is confirmed, and the appeal filed by the worker is dismissed.

At Roji Abogados, we remind you that, in case you wish to make any inquiries about a possible dismissal, the legal deadline for challenging it is 20 days from the date it occurred. After this period, in general terms, it will not be possible to challenge it due to the expiration of the legal action.

If you have any doubts and want to inquire about our working methods and fees, you can do so through:

1. Email:

2. Phone numbers: 952 211 011 and 607 202 361

3. Send a message to Roji Abogados via WhatsApp:

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