The court annuls the dismissal of a man who worked for a competing company during a leave of absence to care for his children

The court annuls the dismissal of a man who worked for a competing company during a leave of absence to care for his children
The court annuls the dismissal of a man who worked for a competing company during a leave of absence to care for his children

Feet of a baby (Freepik)

The High Court of Justice of Cantabria has declared null and void the dismissal of a worker who, while on leave to care for his children, was working for a competing companyboth in the sector of elevator repair and maintenance. In this way, a previous ruling by the court of first instance has been confirmed.

The worker had his first child in 2019 and his second in 2020. In order to better balance his family life, he asked his company for a reduction of working hours to work continuously from 08:30 to 15:30 from Monday to Friday. The company denied this request, which was confirmed in court, so he requested a leave of absence from February 6 to April 30, 2023.

This one was accepted, but after finding out that during that period he was working in another company, he was fired on April 20 of that year. In this new position I had a schedule from 08:30 to 16:30 for only four days, having agreed to a schedule from 09:00 to 15:00 after passing the trial period..

The court of first instance ruled in favor of the man and annulled the dismissal, so the defendant company decided to challenge it. In its appeal, it details that the worker enjoyed a leave of absence to care for a minor child. “fraudulently, since he did so in order to be able to work in a competing company, with worse hours than those he had in the defendant company and in a workplace further away from his home.” In addition, they explain that he would have incurred “in unfair competition given the training received and the provision of services carried out in another company in the same sector of activity”.

The TSJ of Cantabria has responded to this request and has pointed out that “As recognized by case law, a worker who is on leave from an employment relationship can enter into a new contract and provide services for another company or companies during the time that the first relationship is suspended.”During this period, although some rights such as basic benefits are suspended, others are maintained, such as the worker’s return to his or her position and all duties inherent to contractual good faith.

Therefore, in this specific case “It is not possible to conclude that the worker used such a request fraudulently, that is, for a purpose clearly different from that provided for by law, but, on the contrary, the acceptance on his part of a job within the same sector of activity in which he had been providing servicesbut with a work schedule and distribution of hours in accordance with the needs of care and attention to her two minor children in her care, cannot be classified as fraudulent behavior, nor as disloyal or contrary to good faith contractual behavior.”

In addition, they have pointed out that “as stated in the contested judgment, the distance to the new workplace is only three kilometers,or that in no way modifies the previous conclusion, the fact that is intended to be highlighted in the appeal regarding the fact that, now, the distance between the home and the workplace is three times the previous one, given the margins in which we find ourselves, not being significant.”.

In short, the judges understand that “The actor did not use the leave granted for a purpose other than that intended, so his behavior cannot be classified as disloyal or contrary to good faith in the contract.”.

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