The dismissal on disciplinary grounds of a teacher who connected to the internet from a device belonging to the company to read her private email, play online games, check her social media profiles and look at websites relating to property, travel and telephony, has been declared fair due to breaching teachers’ duties of good faith, trust and loyalty.
Judgment delivered by the High Court of Justice of Catalonia on 13 June 2016
The inappropriate use by the employee of a tool provided by the company for the performance of her professional activity is classified under the maximum penalty imposed –dismissal on disciplinary grounds–, which may not be adjusted or amended by applying the invoked case law on progressiveness or proportionality.
The regulations on the use of the company’s IT equipment clearly stated the prohibition of personal use, explicitly outlining the fact that email accounts were to be used exclusively for professional tasks relating to the company. Equally, the abusive or uncontrolled use of the company’s electronic resources for activities not directly related to each user’s role was prevented.
In clear disregard of the specific and notified prohibition, the employee connected to the internet at the company in May, June and September to update her emails, play ludo and check her social media profiles. In particular, one hour and 52 minutes between 27 and 31 May, one hour and 3 minutes between 11 and 14 June, and 27 hours and 5 minutes between 2 and 27 September.
The employee deemed the application of the maximum penalty as excessive –case law on progressiveness or proportionality–. In her defence, she argued that the time dedicated to the private use of the computer and internet was not excessive and fell within the framework of a fl exible working schedule. Moreover, she believed that the company possessed more efficient technical means to prevent any undesired use of computers; that the dismissed employee had no other penalties on record; nor had any other penalties been imposed on other employees implying that the company had a special interest or degree of supervision over the use of IT equipment.
The foregoing were deemed by the Court as irrelevant circumstances which, therefore, do not reduce the severity of culpability with regard to the contractual infringement: the employee’s actions are a clear breach of the principle of good faith inherent to employment contracts, to the extent that they should be punished with the maximum sanction possible by the company, i.e. dismissal without the right to compensation.