The worker cannot prove systematic abusive behavior on the part of the company

The appeal No. 2120/2024 is resolved, filed against the ruling issued by the Social Court No. 4 of Lugo, on February 21, 2024, of procedure No. 616/2023, dismissal/termination in general.

Mr. Bernardo, worked as a kitchen assistant in a restaurant and had an indefinite part-time contract. He suffered a work accident on December 27, 2023, when his boss went to grab some dishes from the cupboards and when a skimmer fell into a fryer, he was splashed with boiling oil on his back, causing a burn that meant he was on medical leave until January 4, 2023. The Labor Inspection report classified the accident as accidental, and the existence of an attack on the worker was not proven.

On January 5, 2023, Bernardo began common sick leave due to a depressive episode. Subsequently, on February 15, 2023, he was sanctioned for having published on his WhatsApp profile an image with a text with which he stated that his boss, Calixto, had poured boiling oil on his back, describing the situation as “ a joke from my boss...". The company considered that the facts were false and that they threatened the honor of the businessman. In addition, numerous clients came to the establishment to ask about the matter, reaching a level of publicity and notoriety that could not be consented to. In the Agreement of the C. State Hospitality Collective, in its article 40.6, it establishes that mistreatment in word or deed, abuse of authority or serious lack of respect and consideration for the businessman will be serious offenses.... Therefore, the infraction was classified as VERY SERIOUS, being sufficient cause for disciplinary dismissal. However, the company's management, under art. 41.1 of the State Agreement, decided to reprimand him in writing and demanded that he remove any insulting and offensive comments from social networks, as well as refrain from making them in the future. In addition, he was warned about possible more severe disciplinary measures.

On March 29, 2023, after an incident, the businessman kicked the worker out of the restaurant, under threat of calling the police, who finally showed up at the establishment. Bernardo apologized to the businessman and was immediately reinstated.

The worker distrusted his colleagues and the employer and since 2021 he has been recording conversations, suspecting that the employer was making comments about him.  

The lower court ruling rejected the termination of the contract for breach of business obligations and ruled out the existence of workplace harassment by the employer, although it ordered the company to pay €6,391.56, partially estimating the amount claimed.

The worker's legal representation presented an appeal requesting modifications in the proven facts, and alleging violation of legal norms and jurisprudence.They alleged that the existence of workplace harassment by the employer constituted a cause for termination of the employment relationship under art. 50.1 a) and c) of the ET. Furthermore, they stated that the moral integrity of the worker had been violated., which justified compensation for the damage caused. The company contested the appeal.

The TSJ of Galicia argues that, regarding the physical abuse that occurred on 12-27-2022, no signs of aggression were found and the accident was considered accidental, as indicated by the Labor Inspection. Regarding verbal abuse, the Court determined that the confrontations between the boss and the employee proven with the recordings did not constitute workplace harassment, since they were isolated incidents and not persistent abuse.  Furthermore, the TSJ decided not to grant the requested modifications to the facts, considering them unnecessary.

The Chamber, after analyzing the European regulations, and jurisprudence of other courts, including the ruling of the TSJ of Galicia, (Social Chamber, 18-1-2024, rec.4569/2023)concludes that workplace harassment or "mobbing" is defined in the specialized field such as abusive behavior or systematic psychological violence at work. It is manifested through behaviors, words or attitudes that damage the dignity or psychological integrity of the worker, causing anxiety, stress and psychosomatic alterations, and that can lead to abandonment of employment due to unsustainable pressure. This type of work stress usually derives more from interpersonal relationships in the company than from job functions.

The Court consider that in the recordings made by Mr. Bernardo, only two isolated confrontations were credited in which the employer called the worker's attention for errors committed. These acts, in any case, were classified as an abusive use of power by the businessman, but not as harassment, due to their duration and isolated nature. Regarding the incident that occurred on December 27, 2022, it was considered that it was a work accident, in any case due to the employer's failure to comply with the obligations regarding occupational risk prevention, although the report of the proven facts does not justify the violation of safety measures by the employer, nor is such a conclusion deduced from the Labor Inspection report. Since this issue was not raised in the instance or resolved in the ruling, it has no place in the appeal. 

For all the above,the appeal is dismissed filed by the representation of Mr. Bernardo, confirming the sentence handed down on 21-2-2024 by the Social Court no. 4 of Lugo, in procedure 616/2023.