As established by the Supreme Court, when a dismissal occurs for breach of contractual good faith or breach of trust,the date on which the limitation period begins is not when the company has superficial knowledge of the fault committed, but pre-registration must be initiated when the company has a full, full and accurate knowledge of the facts.
Dismissal of a worker for breach of contractual good faith or breach of trust
A worker provided services to a bank as a branch manager, until he received a disciplinary dismissal for breach of contractual good faith. The conduct alleged by the company in the dismissal letter consisted of the worker committing certain banking irregularities during the years 2015 and 2016.
The company informs the worker of the initiation of an investigation, in response to a questionnaire of 17-2-2017, and the worker acknowledges the culpability of the facts.
On 28-2-2017, a report of the instructor of the procedure addressed to the competent entity to sanction the faults committed by the worker is made, with which the investigation ends.
Finally, on 20-4-2017 the company notifies the dismissal to the worker for disciplinary reasons,through a dismissal letter dated 4-4-2017.
the worker files lawsuit against dismissal, which is declared inadmissible by the TSJ, both in the instance and in supplication, considering that, despite the fact that the alleged facts constitute a very serious misconduct, the faults imputed to the worker must be considered prescribed, since more than 60 days have passed, which is the limitation period of the very serious sanctions.
This is because, being continuous and hidden faults from the company, the pre-registration period begins from the time the last fault was committed,or since the company has full and exact knowledge of it.
The question to be debated is to determine whether the beginning of the limitation period should be computed from the recognition of the facts,or from the end of the sanctioning procedure through the instructor’s report.
To resolve this issue, the Supreme Court recalls its jurisprudence,in which the following criteria are applied:
a) In those cases of dismissals due to breach of contractual good faith or breach of trust, the date on which the term begins must be set on the day on which the company has full, full and accurate knowledge of them.
b) The full and exact knowledge is maintained or acquired by the company, when it reaches an organ of the same endowed with sanctioning powers.
c) When the punishable acts are committed by the worker fraudulently or with concealment, it is sufficient so that the prescription does not begin to be computed, that the position held by the offender obliges the surveillance and denunciation of the fault committed. Continuously enjoying a special trust of the company that serves to hide one’s own lack is a continuous lack of loyalty that prevents initiate the computation of the prescription.
d) Business knowledge must be effective, real and certain knowledge, and it is not acceptable to replace that real and certain knowledge with the mere possibility of having had the company news of the events that occurred, without that knowledge having taken place.
e) The fact that the worker recognizes the facts investigated or imputed does not necessarily imply that there is already effective, real and certain business knowledge. As it occurs during the investigation, it does not determine that the body with the capacity to sanction has real and certain knowledge. The initial moment that allows the company to impose the sanctioning decision does not occur until the finalization of the report of the investigating body and its referral to the corresponding internal body.
Applying this doctrine,in the case prosecuted and, as regards the response to the questionnaire delivered at the investigation stage, did not imply or suppose in any way that the company had taken real, certain and effective news and knowledge of the fault or faults committed, the Supreme Courts determined that the labor infractions imputed in the dismissal letter had not expired.
For all these reasons, the appeal for the unification of doctrine raised is estimated, marrying and annulling the judgment of the TSJ appealed.
Dismissal of a worker who takes money without permission
Imagine that you have a shop where you check that a worker has taken money without permission, and returns it after a few days. By acting secretly, could you fire him?
If an employee steals money from the cash register and keeps it, the company can dismiss him in a disciplinary manner,with full validity regardless of the amount stolen. Due to the disloyalty of the worker, he incurs a serious and culpable transgression of contractual good faith, causing the loss of confidence on the part of the company.
If, on the other hand, the money does not stay, and returns it after a few days, it is also a cause for dismissal:
- If you act in secret (without your consent), you will also be abusing your trust. For these purposes, it is irrelevant that your undertaking does not suffer economic damage. note. What counts is the breach of the duties of good faith and diligence that are required in an employment relationship.
- Its workers have no right to borrow the money from the box. note. If they need to have cash, the law itself allows them to request an advance on the payroll before the end of the month.
If the employee returns the money, since the employee has returned the money and the company has not suffered damages, it is best to impose a lower penalty,avoiding dismissal, since otherwise some judge might consider that the employee’s conduct is not serious enough. In this case, a sanction of employment and salary would suffice,warning the worker that in case of recidivism he will be dismissed.
And, in any case, it must be verified that the conduct has not expired. Minor offenses are prescribed after 10 days, serious offenses at 20 and very serious offenses at 60, from the moment you have a full, full and accurate knowledge of the breach.
Table on prescriptions and expiries of faults
|concept||Termination of the employer’s right to sanction workers’ faults due to the expiry of the period set for each type of sanction.|
|Short prescription||since the company knows the lack:
|Long prescription||– general assumption: 6 months from the fault; – continuous faults: 6 months from the last fault;
– hidden faults: 6 months from the cessation of concealment (1).
|Interruption||– the investigation of criminal proceedings; – disciplinary proceedings: in the event of sanction by workers’ representatives;
– business actions that express the will to sanction the conduct.
|Restart||once the cause of interruption is finished, the computation of a new term begins.|
|Claim||– challenge before the social jurisdiction (20 working days);
– proof of the facts: it is up to the employer;
– statute of limitations: it is not assessed ex officio by the judge, it must be invoked by the worker.
|(1) A superficial, generic or indicative knowledge of the faults committed is not sufficient, but, when the nature of the facts so requires, the prescription must begin on the day on which the company has a full, full and accurate knowledge of them (TS unif doctrine 14-9-18, EDJ 589815).|
Pre-registration of faults: assumptions
Assumption 1: Short prescription
On 1-3-2018 a worker commits an infraction, which according to the applicable agreement is considered minor and is punishable by a warning. The company has knowledge of the facts at the time they occur.
Being a minor infraction prescribes 10 days. If the company sanctions on March 4, only 3 days have passed and therefore the conduct is punishable; if it sanctions on March 20, 19 days have passed since the facts and therefore the fault is prescribed and the conduct is no longer punishable.
In the case of a serious or very serious infringement committed by an employee representative, an adversarial file is necessary to suspend the limitation period. However, in the case of minor infringements and a file is processed, but this does not interrupt the statute of limitations.
Assumption 2: Long prescription
On 1-3-2018 a worker commits an infraction, which according to the applicable agreement is considered serious and is punishable by suspension of employment and salary for 10 days. Due to the circumstances in which the work is performed, the company has no knowledge of the facts at the time it occurs. The company knows the facts:
– the 1-8-2018: 4 months have passed since the facts, so the company can sanction you since the fault has not expired. Less than 6 months have passed, which is the established statute of limitations;
– on 10-10-2018: more than 6 months have passed since the facts, so the fault is prescribed as more than 6 months have elapsed. It is not punishable conduct.
Assumption 3: Continued Conduct
A hard-working shop steals from the cash register where she works small amounts of money. The conduct begins on 1-3-2018, and ends the behavior on 10-10-2018, knowing that the company was investigating the thefts.
As the worker has stopped committing the continued offense on 10-10-2018, the statute of limitations begins from that moment, despite the fact that the facts have begun to occur since 1-3-2018.
If the company knows the facts on 15-10-2018 and sanctions the worker on 17-10-2018. It is within the limitation periods and therefore, the company can sanction the worker.
Assumption 4: Concealment of facts
A worker embezzlers in the company for which she works. The company is aware of the facts after an audit that exposes the crime. From that moment, when the facts are known, is when the limitation period begins.