The Labor Chamber considered the dismissal with just cause of an employee for the personal use of work email to be unfair, ruling it contrary to the principle of proportionality between the invoked cause and the imposed penalty.

On February 17, 2017, Court No. II of the Argentine Labor Court of Appeals, in re “Pérez, Pablo Martin v. Sprayette S.A. and other a. dismissal”, confirmed the lower court’s ruling that dismissal for personal use of a work email account during a work day was disproportionate, among other issues discussed in the case.

To reach such conclusion, the court held that:

  1. The fact attributed to the employee related to the personal use of the work email account “does not constitute a breach of sufficient magnitude to justify the application of the maximum penalty” set forth in the labor law;
  2. The employee worked for more than ten years without being penalized with appropriate prior progressive disciplinary measures;
  3. Dismissal with just cause may only be invoked when there has been a breach that is “serious  enough to prevent the continuation of the relationship”;
  4. The analysis of the justification for dismissal in the event of the employee’s breach “must be analyzed in detail, considering for such purpose the circumstances of the case and the employee's precedents”.

Labor case law understands that the email provided by the employer is a work tool, and its purpose is the fulfillment of the employee's duties. Notwithstanding which, the breach attributable to the employee and the sanctions that could be applied should be analyzed on a case-by-case basis.

In this regard, as highlighted in this case, dismissal with just cause is the maximum penalty that can be imposed by the employer; therefore, to be applicable the employee must commit an offense or a contractual breach that, due to its seriousness, makes it impossible to continue the relationship. Judges are responsible for assessing this cause.

Furthermore, it should be considered that the principles applicable to penalties – written notification, proportionality, reasonableness and contemporaneity – are also applicable to dismissal with just cause.

This particular ruling does not analyze or make reference to the control of the use of the work email by the employer in the workplace because it is not part of the conflict between the parties. However, we emphasize that such control is neither questioned nor objected at any of the stages.