The dismissal of the security guard absent for 45 minutes to buy water is considered fair on the understanding that so much time is not only an abandonment of his job place, but also represents damage to the company for leaving it without any security.
Judgment delivered by the Superior Court of Justice of Murcia on 8 November 2017 [JUR\2017\309860]
In the present case, the following were declared as proven facts: the employee with a work shift from 8:00 p.m. to 8:00 a.m. was working as a security guard at the company to which he had been assigned. At 9:30 p.m., the managers of the company left the work place. At 10:30 p.m., the alarm of the factory rang, with one of the managers calling the security guard and the Civil Guard.
The managers of the factory were the ones who appeared at the workplace and could verify that there was no one exercising their duties as a security guard, and that it was not until 11:30 pm that the security guard returned to the factory claiming that he had gone to buy water and that got lost on along the way; it is necessary to add that in the facilities there was water.
According to these proven facts, the High Court of Justice considers the dismissal fair. In fact, the purpose of the rule is that the absence of the guard does not occur in any case, since without his presence the control and security disappear, which in itself represents damage to the company.
On the other hand, nothing prevented the worker from contacting a superior to solve a problem without leaving the company unattended, since leaving the workplace for 45 minutes is considered an abandonment of his job place, and with it, an abandonment of surveillance, which is a duty of responsibility and of sensitive content.
It is known that dismissal –as the maximum disciplinary sanction– must always be adopted according to the criterion of proportionality with respect to the offence committed by the employee –in this case security guard–, taking into account the specific circumstances of the case. Likewise, absenting oneself from the surveillance post once they have taken possession of it –that is, already carrying out their functions– is a serious offense expressly provided for in the collective agreement.
On the other hand, the seniority of the worker, with almost 10 years of service, cannot operate as an argument to claim disproportionality of the business measure, but rather on the contrary because his behavior is inappropriate for an experienced worker.
In short, the company has the faculty to impose the appropriate sanction –in this case the disciplinary dismissal–, without affecting the proportionality, since the collective agreement establishes the graduation of the sanctions, and that although the courts are authorized to modify the qualification of an offence, they must respect the business decision on the sanction imposed when it is adjusted to law.
Ultimately, the sanction imposed is declared fair and with it the dismissal.