The worker who claimed incapacity for her usual job exhibited an active life on Instagram, incompatible with her employment situation.

The appeal is resolved (nº3317/2023), filed against the ruling of the Social Court No. 14 of Valencia, (orders 67/2023).The question to be resolved It is whether there has been a serious and culpable breach of labor that could justify disciplinary dismissal.

The worker, Ms. Encarnación, had been providing services since June 16, 2008 as an administrator in a company dedicated to the sale of books and magazines, and the National Collective Agreement of the Paper and Graphic Arts Trade Cycle was applicable.On November 25, 2022, The company notified him of the termination of his employment relationship through burofax, based on art. 54.2 d) of the ET., as well as art. 63.2.4, in relation to arts. 63.3.13 and 63.3.2 of the aforementioned Convention, considering that the facts which are set out below They constituted a clear fraud not only for the company but also for public health services, in addition to obvious disloyalty:

• The worker, who was on medical leave at the time of dismissal, had had several periods of Temporary Disability (TI): from 12/22/2020 to 3/26/2021 with a diagnosis of depression; from 3/30/2021 to 7/15/2022 with a diagnosis of headache and finally from 7/28/2022.
• The mutual insurance company issued a resolution in which it terminated its IT benefit on May 26, 2022, due to the worker's failure to appear for a medical examination. This resolution was appealed by the employee who claimed to be on medical leave due to a “ Anxious emotional state, with cognitive and concentration deficits that prevented him from carrying out his usual activities with memory and sleep disturbances, irritability and hopelessness, not leaving the house while undergoing medical treatments with anxiolytics and depressants.
• During the IT period, the worker carried out activities incompatible with her recovery. On his public Instagram profile he advertised himself as a “Nutritional Coach.” continuously uploading “stories” (videos), daily and weekly publications between 9/2/2022 and 11/16/2022. In these publications, he invited his followers to buy food products from a brand. In addition, he highlighted the great quality of life he enjoyed by being able to be at home working just two or three hours a day on his mobile phone and earning higher income than in his usual profession.
• Overflowing energy, attitude and positivity could be seen in his publications.

Due to these facts, among others, the company considered that it was a clear and absolute violation of contractual good faith and breach of trust in the performance of work, given the repeated and constant simulation of illness. Therefore, the maximum established sanction, disciplinary dismissal, was applied.

The lower court ruling is appealed by Ms. Encarnación, after his claim was dismissed and the dismissal was justified. The appeal was formulated with two claims: first, that a final paragraph be added to the third proven fact, which was not admitted because it was considered insignificant, since it did not alter the ruling. Secondly, the improper application of the legal provisions indicated in the dismissal letter was alleged.

The appellant held that, in accordance with Article 63.2.4 of the Convention, the serious misconduct alleged should be punishable according to Article 64 with a suspension of employment and salary of between three and seven days, but never with dismissal, which would imply a violation of the principle of proportionality and should lead to the declaration of inadmissibility of the dismissal. Furthermore, he argued that the provision relating to recidivism of serious misconduct within a period of six months was not applicable, since the worker had never been previously sanctioned.

Likewise, it was highlighted that Ms. Encarnación's medical history was incompatible with a simulation of illness, and it could not be stated that it had hindered her recovery or that, on the date of dismissal, she was in a position to resume her work activity. Finally, it was argued that The plaintiff's conduct on social networks was mere “posturing.”, where she appeared to lead a fantastic and happy life thanks to the consumption of the brand's beauty and diet products, but said appearance did not reflect the personal reality of the worker, who used those publications as a way to “cheer up.”

The TSJ of Valencia, after analyzing the jurisprudence and the facts of the case,determined that it had been duly accredited that Ms. Encarnación had made various publications on Instagram, in the period from September 2 to November 16, 2022, in which she promoted herself as a nutrition, beauty and cosmetics coach for the brand with which she collaborates. In these publications, he urged his followers to join his activity, highlighting the advantages of working a few hours from home and to buy his products (smoothies, creams, etc.). He reiterated on numerous occasions that he worked only two hours a day, which allowed him to combine his professional activity with his family life.

The Court estimated that if Ms. Encarnación had the energy, concentration and desire to publish products, advise lifestyles and nutrition and beauty treatments on a platform so competitive with Instagram, she was also in a position to carry out her job as an administrative officer. The plaintiff's argument that said publications were a mere “posture” was not supported, since these publications were almost daily and the selection of content and photos was not automatic. In short, the effort, concentration and attention required are incompatible with a cognitive and memory deficit with a disabling psychological disorder.

The Room concludes that the plaintiff's conduct demonstrates her aptitude to work violating one of the two requirements of art. 169 of the LGSS (need for health care and inability to work). Therefore, Ms. Encarnación violated good faith, maintaining a temporary disability that represents fraud against Social Security, the health system and the employing company. Consequently,The appeal was dismissed and the appealed sentence was confirmed.