Post by soyeb19 on Feb 17, 2024 8:34:47 GMT
After learning of these facts, the company informed him that it was aware of his almost daily activity in the markets, so it was clear in the company's opinion that the worker was simulating an illness . Likewise, if the pathologies that the employee reported to the company that he suffered from and that prevented him from carrying out his work as a forklift driver were true, the activity he carried out at the mobile stand would not facilitate his recovery, but rather would prolong his situation. low.
Given that, according to the evidence provided by the detective, when the actor went to the street stall he drove his vehicle, made efforts, stood for long periods of time, carried weight and even in forced positions for his back and lower extremities, all of this At the same time that he did not provide services for his company through IT, the employer claimed that he was committing fraud , since, at the same time that he provided services for a third person or for himself, he received a benefit for being disabled.
“He is clearly committing fraud, both for the Whatsapp Database company that continues to bear the expense of his Social Security - in addition to having to assume his absence with another worker - and for Social Security itself , which assumes the benefit for said temporary disability. ”.
This fraud and disloyalty to the company also meant a breach of contractual good faith and a loss of trust serious enough to proceed to punish him with disciplinary dismissal.
An activity incompatible with the IT situation
The worker, in disagreement with the sanctioning measure applied by the company, filed a lawsuit against it, however, the Social Court No. 1 of Cartagena dismissed the lawsuit, declaring the origin of the dismissal and not appreciating a violation of the fundamental right alleged by the actor (indemnity guarantee).
The judge considered that, "although there are indications of such violation, it is proven that the activities carried out by the plaintiff worker, due to their characteristics and duration, and without sufficiently proving their alleged nature of "occupational therapy", are incompatible with the situation of temporary disability in which he found himself, because they reveal his aptitude to carry out his work activity for the defendant company, which is why they constitute a very serious breach of contractual good faith, typified in art. 36 of the Collective Agreement for Handling and Packaging of Fresh Fruits and Vegetables and art. 54.2 of the Workers' Statute ”.
A ruling that has recently been ratified by the Superior Court of Justice of Murcia after rejecting the appeal filed by the worker against the lower court ruling. In this way, Justice confirms the admissibility of the dismissal.