The TSJ of Andalusia confirms the admissibility of the dismissal by proving that the worker carried out activities incompatible with the low back pain that caused the temporary disability.

Mr. Ernesto provided services as a maintenance and cleaning manager in two cooperatives. His duties included repairs to facilities, assembly of irrigation pipes, electricity, drainage, roads and handling of heavy machinery, in accordance with the Collective Agreement of the Campo de Huelva.

On August 5, 2022, Mr. Ernesto was sick on leave due to low back pain resulting from a work accident, and was discharged on August 28, 2022. During his leave, the company hired a private detective, who documented (with photographs) that on August 22, 2022, the worker carried out specific installation work on air conditioning equipment in a home, adopting weight-bearing postures, flexion, extension, lateralization and rotation, as well as Cervical and lumbar hyperextension.

On October 14, 2022, the company notified Mr. Ernesto of the disciplinary dismissal, alleging violation of contractual good faith and simulation of illness, in accordance with art. 54.2.d ET and art. 33.g of the Campo de Huelva Collective Agreement.

The worker sued, requesting that the disciplinary dismissal be declared null or subsidiarily inadmissible.

What did the parties allege?

The plaintiff, Mr. Ernesto, maintained that the activity carried out was minimal and did not involve significant physical effort, not interfering with his recovery.. He alleged that the detective's report and the termination letter exaggerated the alleged incompatibility with temporary disability. According to his friend's testimony, the air conditioning unit was installed on the terrace and Mr. Ernesto only changed a hose without supporting weight or carrying out activity comparable to his usual position. 

The defendant cooperatives defended the admissibility of the dismissal, arguing that the worker performed activities incompatible with his recovery process, constituting violation of contractual good faith.

They provided a medical-expert report, which concluded that the positions adopted were contraindicated for low back pain, and could cause new contractures or delay recovery.

They pointed out that, in accordance with the jurisprudence of the Supreme Court, any activity during temporary disability that demonstrates fitness for work or interferes with recovery may justify a disciplinary dismissal.

The Social Court No. 2 of Huelva declared the dismissal unfair, valuing the testimony of the worker's friend and considering that the activity was not paid, but a favor, which also It didn't affect his recovery..

The cooperative filed a petition requesting the review of the facts and the classification of the dismissal as appropriate, invoking the expert report that confirmed the incompatibility of the activity with the temporary disability.

The Superior Court of Justice of Andalusia, Ceuta and Melilla admitted the appeal and considered that the detective's expert report and photographs had greater technical and objective value, while the friend's statement was subjective and had no scientific support. 

Therefore, the objective tests proved the incompatibility of the activity with the temporary disability. The detective's photographs showed that Mr. Ernesto went to the friend's home and, on the terrace, manipulated an air conditioning unit, performing positions incompatible with his discharge.

In relation to the activities that a worker cannot carry out during the situation of temporary disability jurisprudential doctrine distinguishes two different categories:

• Activities incompatible with the pathological process of discharge They are those that show simulation of the disease or fraudulent prolongation of the disability. If the worker carries out this type of activity, it is presumed that he or she has obtained sick leave for fraudulent purposes, affecting both the company and Social Security.
• Activities incompatible with the effectiveness of the treatment. They do not necessarily simulate the disease, but they interfere or delay recovery, affecting the outcome of prescribed medical treatments.

In application to the specific case, the postures adopted by Mr. Ernesto during the observed activity were contraindicated for low back pain. The activity was carried out during the temporary disability, with risk of worsening or delay in recovery. Therefore, the conduct constitutes serious and culpable non-compliance by the worker, justifying proper dismissal.

The Court concluded that the activity carried out during the leave constituted a violation of contractual good faith., according to art. 54.2.d ET and art. 33.g of the Campo de Huelva Collective Agreement.

Failed:

The resource is estimated petition filed against ruling no. 68/2023 issued on May 24, 2023 by the Social Court number 2 of Huelva (orders no. 898/2022). HE revokes the court ruling, declaring the dismissal of Mr. Ernesto appropriate.All defendants are acquitted of the petitions formulated against him.