The disciplinary dismissal of an employee due to repeatedly failing to adhere to his working schedule and falsifying timesheets has been declared unfair in view of evidence revealing bad faith on the employer’s part by implementing a schedule exceeding the terms established in the applicable collective agreement.

Judgment delivered by the High Court of Justice of Asturias on 24 May 2016

As an office cleaner, the employee was dismissed on disciplinary grounds due to a constant and repeated failure to adhere to his schedule, in turn falsifying the timesheets submitted to the company on a weekly basis.

The company believed that the employee had committed blatant fraudulent and disloyal acts, as well as an abuse of trust, in the performance of his duties.

Nevertheless, the court believed there to be a reciprocal breach of good faith by both the employee and employer, having observed evidence that the employee was forced to work a 40-hour week which exceeded the maximum 38.5-hour schedule set forth in the applicable collective agreement.

The foregoing, together with no proof of damages caused to the company and the fact that the employee had been working there since 2003 with a clean record and no warnings against him, led to the declaration of unfair dismissal.

Specifically, in view of the progressive theory, the court concluded that the events did not provide suffi cient justifi cation for the maximum punishment of dismissal.