The TSJ of Valencia clarifies that these behaviors do not constitute fraud or disloyalty and recalls the limits of the appeal in the review of proven facts and the impossibility of reopening the evaluation of the trial evidence.

The appeal filed by the company is resolved against the ruling of December 12, 2024 of the Social Court No. 16 of Valencia (orders 882/23) on dismissal.

The worker was providing services as a shift manager in a restaurant since July 21, 2021, with a 20-hour work week from Monday to Sunday. Their employment relationship was governed by the Valencia Collective Hospitality Agreement.

On July 17, 2023, he suffered a work accident that caused a closed metatarsal bone fracture, starting medical leave. After continuing the rehabilitation process, he was discharged on August 9, 2023 due to regaining his ability to carry out his usual work.

During his discharge, the employee,went to the restaurant where I worked on two occasions, the days July 29 and 30 2023. According to the company,During these visits, he was seen without any apparent discomfort and walking completely normally, he was wearing sports clothing and he recognized that he had come from running, from playing sports. stating that he had to take care of himself and get in shape.  He even helped change a keg of beer. For the company, these behaviors were incompatible with his disability situation, and as of August 7, 2023, was dismissed disciplinary, arguing that he had simulated his illness and carried out activities contrary to his pathology(as indicated by the company in the dismissal letter, the worker had informed his manager that he had a sprained ankle on his left foot). The facts stated in the dismissal letter are proven.

In instance, the court upheld the worker's claim,declared the unfair dismissal, condemning the company to choose between his reinstatement to the job or paying him compensation of €2,627.46, along with the wages accrued since the date of dismissal (€38.22 per day).

In the appeal, the company alleged three reasons:

Modification of the first proven fact: requested that it be stated that the company's own Collective Agreement was applicable to the worker and that in disciplinary matters it was referred to the Labor Agreement for the Hospitality sector.

The Court accepted this modification because it is objective data, included in the employment contract, and which affects the worker's working conditions.

Modification of the fourth proven fact: The company asked to include that on July 25, 2023, four and five days before the events alleged in the dismissal letter, the worker was treated by his mutual insurance company and as stated in their reports "He comes to fit Walker, it is placed, removing the splint and we wait to decide" and that on August 7, 2023 the boot (Walter) was removed and he was given active exercises as a rehabilitation treatment.

The Chamber rejected the modification of the factual account due to lack of significance to alter the resolution. He recalled the doctrine of the High Court (STS 03-15-2023, rec. 178/2022) that establishes The requirements that must be met for the modification of proven facts to succeed:

1. The fact in question (what is added, rectified or deleted) must be clearly and precisely stated.
2. No legal rules or evaluations can be included, only facts.
3. The party must specify where they disagree, not just show general disagreement.
4. The error must be evident, clear and reflected in the documents contained in the records, without making conjectures or arguments.
5. It cannot be based on testimonial or expert evidence, only on the documentary evidence in the record that demonstrates the judge's mistake.
6. It is necessary to indicate the exact text that replaces, deletes or complements the factual account.
7. The rectified facts must be relevant to modify the ruling (or reinforce its meaning).
8. The proven facts and their influence or variation in the ruling must be written.
9. It is not possible to include data that is only convenient for your procedural position, they must be instant errors that are significant for the ruling and with documentary support.

Infringement of art. 54.2 d) ET: The company reported violation of said provision, in relation to arts. 40.2 and 40.9 of the agreement, which classify abuse or disloyalty at work as a very serious offense, such as the simulation of illness or the performance of work incompatible with temporary disability. He alleged that the worker had committed fraud and breach of trust, which justified his disciplinary dismissal.

The art. 54.2 d) ET sanctions as a very serious offense the violation of contractual good faith, a principle that requires loyal, honest behavior and in accordance with mutual trust.

The jurisprudence of the Supreme Court considers that this cause for dismissal does not require economic damage, but rather a breach of trust. In addition, it covers serious intentional or negligent conduct, the severity of which must be assessed according to the responsibility of the position.

In this case,the TSJ of Valencia concludes that the worker complied with the medical rehabilitation guidelines, since performing physical exercise in the final phase of recovery is not equivalent to fraud or simulation of illness. There is no fraudulent intent or unfair conduct that justifies the maximum sanction of dismissal. The trial judge's assessment was reasoned and in accordance with doctrine.

Therefore, the Chamber rejects this reason, also remembering that the exceptional nature of the appeal does not allow a global review of the evidence as if it were a second instance.

The TSJ confirms the inadmissibility of the dismissal, not appreciating fraud or disloyalty in the activities carried out during the medical leave. The appeal filed by the company is dismissed in its entirety (appeal no. 609/2025) and the lower court resolution is confirmed.