The Superior Court of Justice of Asturias (TSJA) has declared Improper the dismissal of a person in charge of Mercadona personnel after a discrepancy on the salary remuneration set in the contract of a new employee. The worker, who performed personnel and labor relations functions, was farewell for having established a higher salary without authorization Express, what the company described as a serious offense. Although this action contravened the rules of the company, the TSJA concludes that Mercadona knew and tolerated that practice and that a loss of sufficient confidence to justify the disciplinary dismissal was not accredited.
The farewell worker was personnel responsible in Mercadona And, among its functions, was the Management of contracts and working conditions. Apparently, while exercising its functions, a new employee fixed a salary higher than usual, specifically 2,067.51 euros monthly gross. This remuneration did not follow the salary model established by the company, which generated a conflict with the hierarchical managers.
According to the company, The employee acted without authorization and with abuse of trustby modifying on their own initiative a relevant economic condition. Therefore, the company communicated the disciplinary dismissal, arguing that its performance was a transgression of the good contractual faith and that it had exceeded the limits of its position.
The worker did not share that version and glad that The company knew that practice for a long timethat he had never caught his attention for it and that, in fact, that clause had previously been used without consequences. Convinced that the dismissal had no sufficient basis, filed a lawsuit before the Social Court claiming that the inadmissibility be declared.
Mercadona was aware of this practice
In the first instance, the Social Court, valued that There was no clear proof that the worker acts unfairly nor that this salary clause would have been a hidden or malicious decision. In fact, he found that it was a practice that had previously been used and that the Mercadona Directorate had knowledge of it. Therefore, the court declared the inadmissible dismissal and gave the company the option between readmit or compensate it.
Mercadona appealed the sentence before the Superior Court of Justice of Asturias (TSJ), claiming that the worker had acted without authorization and had incorporated a salary clause into the employee’s contract that did not correspond to the usual remuneration model of the company. In his opinion, that action was a transgression of good contractual faith and an abuse of confidence in the functions entrusted, which justified the disciplinary dismissal, as stated in article 54.D of the Statute of Workers.
But the TSJ dismissed the resource. In his sentence, he explained that the company He did not contribute sufficient evidence that there was a clear prohibition or that the employee’s performance was fraudulent. Literally, the Court affirms that “it is not accredited in any way that the contract was signed with concealment or intent,” and adds that “it was not an arbitrary action or oblivious to the uses of the company”, but of a practice that had been known by the direction without proof that it had been expressly prohibited.
Although the company considered that the dismissal was adjusted to the norm, the TSJ explained that Trust cannot break if the company itself tolerated these practicesand there was no internal norm that prohibited them clearly. In the words of the TSJ: “It is not possible to talk about transgression of good faith when there are no clear instructions, nor is there an intention to harm.” Therefore, the dismissal was considered inadmissible, so the company must opt for whether the worker or compensate her with 36,245.99 euros.
