The ruling confirms that the employee sought to fraudulently obtain unemployment, but the action taken is not considered reckless.

It resolves the appeal presenting for the legal representation of the worker before the Sentence of the Social Court 2 of Barcelona of date July 3, 2023 (lawsuit for dismissal with case number 309/2021), being appealed by the defendant company and FOGASA.

The worker provided services with an indefinite contract and was a cleaner, but was on leave.leave of absence for care of a family member since December 16, 2019 until on April 20, 2020, having been extended until March 22, 2021.

He February 15, 2021, the worker sent a message via WhatsApp to the defendant in which she indicated: “P For reasons of COVID and health, for me it is better to remain unemployed.” In addition, he asked the company “ "If there is any possibility of getting my unemployment papers sorted." The company responded “ You must return to your position; if you cannot return, you must voluntarily leave.” The worker informed them that, “ Since the work was going badly, he hoped to reach an agreement with them. With a voluntary resignation, he would not be able to benefit from unemployment and he would send them the incorporation letter hoping that they would change their mind.”

He February 15, 2021, the plaintiff sent a reinstatement letter and, the next day, the company informed her of the work centers in which she would work upon her reinstatement. On March 12, the company sent him a new communication informing him of changes in the initially assigned centers. Given this, the plaintiff requested an appointment with the manager for March 22. The company informed him that it had to deliver PPE before his incorporation, scheduling the delivery for the morning of the 22nd before starting his day, and postponing the appointment with the manager for March 29.

The plaintiff did not go to the work center assigned to him on March 22, 2021, nor in the following days. On March 29, 2021, he communicated by email “ I have never asked for a voluntary leave from the company, in my case there has been a substantial modification of the contract, a change in schedule and place of work and I have already notified him by telephone that the changes were not going well for me (…)”

He On March 30, the company processed the withdrawal from Social Security stating as the reason for the withdrawal volunteer and that same day, the worker sent a WhatsApp message explaining that it was not abandonment of work, but rather lack of attendance.

He Social Court dismissed the claim considering that the evidence carried out indicated an intention to provoke a disciplinary dismissal in order to access unemployment benefits, finding itself in fraudulent conduct that was not tolerated or protected and absolved the co-defendants of the claims of the claim, imposing on the plaintiff a fine of €200 for recklessness.

He resource had for object determine whether it was appropriate to declare the dismissal unfair or if, on the contrary, it was a resignation or abandonment of the job by the worker due to her lack of attendance, in addition to evaluating the origin of the fine imposed.

The jurisprudential doctrine has been stating that for a leave to be considered voluntary, it is necessary for the worker to express his intention expressly or tacitly, through oral or written communications addressed to the employer. Furthermore, it has been pointed out that the worker's resignation does not require a formal declaration of will; It is enough that your conduct unquestionably demonstrates your decision to terminate the employment relationship. In this case, the worker reported her intention not to return to her job.

He TSJ confirms the lower court ruling, pointing out that it was a resignation and not an unfair dismissal. The worker clearly expressed her intention not to return to work, and she did not do so in isolation, but insisted. Their objective was to fraudulently obtain, in collusion with the company, the right to unemployment benefits.

Regarding the sanction imposed for recklessness in the initial sentence, considering that the action was carried out recklessly, which meant the need to cover a series of expenses for the opposing party,the room  consider that according to the provisions of article 75.4 of the LRJS, It is not considered that there are circumstances that determine such a sanction, given that regardless of the solidity of the plaintiff's claim, it is not considered that it can be classified as reckless in the terms required by the provision. Consider that “ "No facts have been proven that indicate the issuance of the most basic diligence."

Failed: The worker's appeal was partially upheld. The fine for recklessness was eliminated, maintaining that the worker's voluntary dismissal was appropriate.