The ruling of the Superior Court of Justice of Asturias 2918/2023 of December 12 resolves the appeal filed against the ruling of the Social Court No. 1 of Gijón of July 12, 2023, whose ruling confirms.

In the lawsuit, the worker appealed against the disciplinary dismissal decided by her company for not recording her day in the application implemented by the company, as well as not reporting daily her activity, both in visits and in obtaining the informed consent of her clients for the purposes of transmitting information or advertising to them, or showing them a certain number of times the products offered by the company, called "showpad" or digital marketing.

For its part, the company confirmed that it urged the worker on multiple occasions both verbally and by email to record her day and to comply with the parameters required in relation to said "showpad" or digital marketing. Thus, regarding the recording of her hours, in the months of January and February 2023 the employee did not record her hours on 31 occasions. And regarding the employee's activity, the company confirmed that her average % of access to digital marketing material was the lowest of all sales representatives. The same happened with the informed consent of the clients, since the employee achieved 29% while the average of the sales representatives was 77%. And regarding the reported visits and compliance with the 24-hour reporting period, the company confirmed that between October and December 2022, the employee only reported 10% of the daily visits in the following 24 hours, while the rest of the sales representatives reported 90%. And between January and March 2023, it did the same with only 7% of visits.

The TSJ recalls that in addition to the business duty of punctual and full payment of the salary, the worker is responsible for carrying out his benefit within the established time, in such a way that just as non-compliance by the former implies the right of the latter to terminate the relationship with the corresponding compensation of article 50-1 b) and 2 of the Workers' Statute, this implies, when it comes to repeated and unjustified absences, the serious and culpable contractual breach that article 54.2.b) of the same Workers' Statute qualifies as indiscipline and is considered a cause for disciplinary dismissal.

And in relation to indiscipline or disobedience at work, a reiterated jurisprudence indicates that disobedience admits nuances and gradations for the purpose of applying or not the sanction of dismissal, this must be reserved for those non-compliance endowed with a special significance due to its serious, transcendent and unjustified nature, without a simple disobedience that does not contain an exaggeratedly indisciplinary attitude, or that is not results in harm to the company, or in which there is a cause of incomplete justification.