THE IMPORTANCE OF TRUST AND GOOD FAITH IN LABOR RELATIONS: THEFT - SOME REFLECTIONS

Lately, news like the ones we analyze below have emerged, potentially confusing the significance of good faith in labor relations and the consequences of its violation.

"An employee with more than 30 years at El Corte Inglés is dismissed without compensation for eating pastries without paying: the court upholds the decision."

The High Court of Justice of Catalonia declared the disciplinary dismissal of an El Corte Inglés employee unfair. After more than 31 years with the company, the employee was dismissed for repeatedly consuming bakery products during their work shift without paying for them. Although the company's internal regulations explicitly prohibited this practice and considered it an act of theft, the court found that the required severity and culpability to justify the ultimate penalty of dismissal had not been proven.

"A Mercadona employee is dismissed for weighing a squid after cleaning it to make it cheaper, and the court rules the dismissal unfair."

The High Court of Justice of the Canary Islands declared unfair the dismissal of a Mercadona employee who cleaned a squid before weighing it and later purchased it, allegedly, according to the company, intending to pay a lower price. The court ruled that, while the company's policies prohibited this practice, the act was not severe enough to justify dismissal.

Analysis of the Cases

Disciplinary dismissal for theft is an extreme measure justified by the violation of contractual good faith and abuse of trust by the worker, as regulated in Article 54 of the Workers’ Statute (ET). However, its validity depends on a detailed analysis of the specific circumstances of each case, highlighting key legal elements:

1. Principle of Proportionality

Article 54 of the ET states that disciplinary dismissal is only justified if the breach is serious and culpable. This means the company must prove that the worker’s actions caused an irreparable breakdown in the employment relationship.

In the analyzed cases (El Corte Inglés and Mercadona), the courts found that the workers’ actions (such as consuming low-value products or manipulating the weight of a squid) were not severe enough to justify dismissal.

Jurisprudential Criteria: In recent rulings, courts have considered the minimal economic impact, the absence of intent (dolo), and prior employer tolerance of certain behaviors. These considerations led to the dismissals being classified as unfair, highlighting the disproportion between the act committed and the imposed sanction.

2. Gradualist Doctrine vs. Strict Approach

The jurisprudential debate revolves around the gradualist doctrine, which assesses the severity of the misconduct based on:

  • The worker's seniority.
  • Their disciplinary record.
  • The intent and deceit (dolo) in the act.
  • The economic value of the stolen item.

However, in an October 2023 ruling, the Supreme Court appeared to move away from this doctrine, arguing that any act of theft, regardless of value, justifies disciplinary dismissal, as it leads to a loss of trust in the employee.

This reinforces both the employer’s managerial authority and disciplinary power, emphasizing the “loss of trust” resulting from the worker’s actions. The Supreme Court seems to be adopting a stricter stance on the application of disciplinary dismissal, also relying on the fact that this behavior was explicitly prohibited in the collective agreement.

Dismissal for theft, fraud, disloyalty, or abuse of trust, whether against colleagues, the company, or third parties, aligns with Article 54.2 of the ET, which classifies "the violation of contractual good faith and the abuse of trust in job performance" as grounds for dismissal.

3. The Role of Internal Policies and Employer Tolerance

A recurring issue in these cases is the lack of clarity in internal policies or the existence of previously tolerated practices:

  • In El Corte Inglés' case, the company had not previously warned about discontinuing tolerance for product consumption, influencing the ruling of unfair dismissal.
  • In Mercadona's case, there was no proof that the employee engaged in fraud or theft, as it was not established in their internal policies that cephalopods had to be fully drained before being weighed and cleaned.

Asefico Consulting Legal Recommendation: Employers should establish clear policies and effectively communicate them to employees, specifying prohibited behaviors and their corresponding consequences.

4. Use of Evidence and Video Surveillance

The use of video surveillance as evidence for disciplinary dismissal is legal if it meets the requirements of proportionality, suitability, and necessity, as established by rulings from the Constitutional Court and Supreme Court.

  • In the mentioned cases, recordings were deemed valid since employees had been informed about the installation and purpose of the cameras.
  • However, failure to comply with data protection standards or information obligations can render video evidence inadmissible.

Asefico Consulting Legal Warning: If video surveillance does not comply with legal requirements, it may be declared invalid as evidence. Proper documentation of the facts (video, documents, witness testimony, etc.) is crucial.

5. The Impact on Employment Relations and Contractual Good Faith

Dismissal for theft should not be assessed solely on economic grounds but also considering the mutual trust between employer and employee. Taking company property, even of low value, may constitute a severe breach affecting the employment relationship, justifying dismissal in certain cases.

Conclusion by Asefico Consulting

Disciplinary dismissal for theft requires balancing the employer’s right to protect assets with the proportionality of the sanction. While theft or misappropriation can justify dismissal, jurisprudence emphasizes the need to assess each case based on:

  • The objective and subjective severity of the act.
  • The proportionality of the sanction.
  • The worker’s specific circumstances and work context.

The current legal framework requires companies to:

  1. Thoroughly document incidents.
  2. Respect disciplinary procedures.
  3. Evaluate sanctions with proportionality and fairness.

Consistency in internal policies and respect for workers' rights are essential to prevent legal disputes and excessive sanctions.

If You Are an Employer, Keep in Mind:

✅ Establish and communicate clear internal policies, including prior warnings before imposing extreme disciplinary measures.
✅ Document infractions properly, ensuring that evidence meets legal requirements.

Labor Law Department
Fermín Ojeda