The recording proposed as evidence to show the admissibility of the dismissal may not be taken into account as the employee was not informed of the camera prior to recording.
Labour Court of Cordoba on 20 April 2018
The company notified the employee of her disciplinary dismissal. The woman worked as a supermarket cashier.
In the dismissal letter, the worker is accused of insubordination and breaching the applicable hygienehealth rules for food handlers, consuming products destined for sale during the work day without paying the corresponding amount due.
The dismissal letter stated the following specifically: “You took a pie from the counter, then placed the pie on a table. Then for approximately the next 12 minutes, and while attending to customers, you gradually consumed the pie (without having paid for it at any moment), putting your fingers in your mouth several times and continued to handle food products without having washed your hands at any moment, as is required of you”.
To this, it must be added that the employee had been temporarily disabled due to a non-work-related accident at various times throughout the year of the dismissal and the prior year.
Furthermore, the employee’s behaviour was monitored through a camera placed at the workstation which was installed by the security service as ordered by the company and without informing the employee beforehand.
The Labour Court considers that the evidence from the video in which the company uses to support its reproaches which are cause for the disciplinary dismissal is unconstitutional. It references precedents from the Constitutional Court and the ECHR. Of the former, it highlights the judgement from 9 January 2018 on the López Ribalda case and others, which it considers evidence obtained via hidden video-surveillance to be unlawful, recognising the disproportionate measures adopted by the business owner, with regard to the legitimate aim of the owner protecting their property rights and respecting the private life of the employee. It also recognises the breach of the Data Protection Act, which establishes the obligation to inform the data subjects of the existence of personal data collection and processing means.
Therefore, for the Labour Court, the recording used as proof by the company to confirm the acts, which occurred on a single day, and to justify the dismissal, may not be considered.
In view of the lack of evidence of the breach by the employee alleged by the company, it was necessary to determine if the dismissal was null or unfair.
On the date of the dismissal, the employee was not temporarily disabled. Furthermore, having been relocated to another workstation as a result of injury, of which the employer was aware, any discrimination or breach of fundamental rights by the company is ruled out.
Ultimately, given the recording used as proof by the company to demonstrate a breach does not exceed the judgement of proportionality (which prevents claiming admissibility of the dismissal) and given that no discrimination or breach of fundamental rights by the company were shown (which prevents claiming nullity of the dismissal) the Labour Court declared the dismissal as unfair.