The employee had a shoulder injury and was on the waiting list to undergo surgery. The company has 5 days to choose between rehiring him or awarding him compensation of 95,430 euros.
The Social Chamber of the Supreme Court of the Basque Country (TSJPV) has declared inadmissible the dismissal of an employee for playing at a rock concert while on sick leave, as this activity was not incompatible with his temporary incapacity for work and did not affect him . “a breach of contractual good faith”.
The TSJPV partially upheld the employee’s appeal against a ruling of the Social Court 3 of San Sebastián, which considered the dismissal adopted by the company for very serious misconduct in the workplace as appropriate, and ordered the company to days, choose between repair or payment of compensation of 95,430 euros.
As stated in the decision, the man had been on sick leave since December 4, 2021 due to a right shoulder injury and was on the waiting list for surgery.
He September 17, 2022 he played guitar at a rock festival and on November 17 the company fired him for which he considered a very serious lack of work because, while on sick leave, he engaged in an ‘activity totally incompatible’ with that temporary incapacity for work, which constituted a breach of contractual good faith and a breach of trust. The Superior now estimates that ‘it is not appreciated’. the existence of a clear conduct of violation of contractual good faith by the employee, since he has not carried out any activity incompatible with his situation of temporary incapacity for work. this requires a raise of the right shoulder.
“It’s a recreational activity (playing the guitar), not demanding at shoulder height (even if it is during a rock concert)So there is no disloyalty towards the company,” he added. In his appeal to the TSJPV, the employee also requested annulment of the dismissal because there was discrimination due to illness. However, the Superior notes that the company presented sufficient evidence to demonstrate that their decision did not constitute discrimination or retaliation.
Source: EITB
I’m Wayne Wickman, a professional journalist and author for Today Times Live. My specialty is covering global news and current events, offering readers a unique perspective on the world’s most pressing issues. I’m passionate about storytelling and helping people stay informed on the goings-on of our planet.
