The Court considers that the offense committed is not serious enough to justify disciplinary dismissal, despite the fact that he used the uniform and vehicle of the company for which he worked as an employee.

The appeal number 1615/24 filed against the ruling of the dismissal process with case number 268/23 of the Social Court of Melilla is resolved.

D. Mateo worked since 2013 as an official telecommunications technician for a company dedicated to communications (distribution of mobile and landline telephones, internet). On March 1, 2023, the company notified him of a statement of objections for alleged offenses classified in the agreement as very serious, including fraud, disloyalty and abuse of trust, due to the fact that he had carried out freelance work during his work day. He was given a period to present allegations, but he did not acknowledge the alleged facts. In his defense, he argued that He was also self-employed., authorized installer of security cameras,and that the work they were talking about had been done on a non-working day.

On March 7, 2023, the company notified him of a second statement of objections, expanding the basis for the accusations, based on article 54.2.d) of the Workers' Statute, which contemplates dismissal as a sanction for very serious offenses, such as "the violation of contractual good faith, as well as abuse of trust." However, it did not take into account the specific provisions established in the collective agreement that regulate the specific offense committed by the worker. The company considered that this behavior negatively affected its image and that same day, it notified him of his disciplinary dismissal, based on a call received at the office, in which a client claimed an invoice of 350 euros for the installation of security cameras that, in addition, did not work correctly. The company discovered that, during their work day, Mr. Mateo and another colleague, wearing the company uniform and vehicle, taking advantage of the fact that they were going to the company warehouse to drop off a fiber coil, showed up at the client's house to see why the installed cameras were not working and solve the incident.

Mr. Mateo defended that the installation had been carried out in his free time as a freelancer and he did not understand why the client had gone to the company to claim the invoice.

The Social Court of Melilla estimated the demand and declared the dismissal as unfair, considering that the proven facts were not serious enough to justify dismissal.

The company appealed this ruling before the Superior Court of Justice of Andalusia, Ceuta and Melilla, arguing that the alleged acts had to be considered very serious.

For his part, Mr. Mateo challenged the admissibility of the appeal, pointing out that the company had not complied with the delivery deadlines and that in no case had it led the client to think that the installation had been carried out by the defendant company.

The High Court dismissed the company's appeal and confirmed the ruling of the Social Court of Melilla. He argued that, in the collective agreement applicable to the company, carrying out private work during the working day, using tools or company uniforms, was classified as a serious and not very serious offense.   The company had not correctly classified the fault committed by the worker with what was established in the collective agreement, so the dismissal was not appropriate..

The Court applies the gradualist theory and concludes that "The actor's conduct could have caused discredit in the commercial interest of the company, but the negotiators of the collective agreement wanted to classify such conduct as a serious offense, not a very serious one, so the determination of the sanction must be in accordance with the provisions of the conventional norm (suspension of employment and salary).”

The TSJ declared the dismissal as unfair, as the sanction did not match the classification of the fault, condemning the company to compensate or reinstate the worker, and to pay the procedural costs of the appeal.