The worker had no physical or mental impairment that could influence driving.
HE solve he resource of cassation for the unification of doctrine presented by the actor against the ruling of July 13, 2022 of the TSJ of Andalusia (rec. petition no. 738/2022) formulated against the ruling of the Social Court No. 9 of Malaga of February 10, 2022 (records no. 935/2021), which declared the dismissal appropriate.
The worker, who had been providing services as a mechanical driver since June 18, 2021, was disciplinary dismissal on July 13, 2021 for committing three very serious offenses, according to art. 77.3 of the company's Collective Agreement:disobedience, violation of contractual good faith, abuse of trust and drunkenness or drug addiction. The art. 77.3.7 states that “ In the case of drivers, only exceeding the blood alcohol level established by regulation at any time during work, as well as driving under the influence of drugs, hallucinogenic substances or narcotics, will be sufficient.
During a routine control carried out by the Civil Guard on July 3, 2021, while transporting goods for a customer, the worker gave THC positive. Although the truck was immobilized, in the Civil Guard report they did not report signs of physical or psychological damage due to toxic substances. The worker admitted to his Area Manager that he had consumed drugs June 30. The company had implemented a prevention measure, included in the risk assessment form signed by the worker on February 18, 2023, which prohibited the consumption of alcohol, drugs and contraindicated medications before and while driving.
The Superior Court of Justice of Andalusia confirmed the validity of dismissal. The court declared that driving under the influence of drugs was a serious offense that justifies dismissal, since it represents a risk objective in the driving especially reprehensible for those who drive motor vehicles.
In the resource of cassation, the worker alleged contradiction between the appealed sentence and that issued by the Social Chamber of the TSJ of the Balearic Islands on March 22, 2019 (rec. supplication 532/2018). The legal representation of the company presented a challenge document and the Public Prosecutor's Office issued a report indicating that the contradiction had to be considered given that the facts were substantially the same and given identical claims and foundations, although with opposite results. In the reference statement, it was mentioned that the driver tested positive for drugs, however, it was not considered sufficient for the consummation of the offense. Note that the driver was involved in a multiple collision, the positive result for THC was not considered sufficient to sanction, since no indications were found that the driver was carrying out the activity under the influence of the drug.
He Supreme Court examined the room doctrine, and specifically that contained in the STS of July 19, 2010, (cassation decision 2643/2009) and highlighting the need for proportionality and adequacy between the fact, the person and the sanction. It highlights that each case must be analyzed individually and not automatically. In this case, the applicable Convention coincides with the legislation on road safety.The Traffic Law, Motor Vehicle Circulation and Road Safety dedicates its article 14 “Alcoholic beverages and drugs” and contemplates that you cannot circulate with levels of alcohol or drugs higher than those determined by regulation, except those that are used under medical prescription for therapeutic purposes. Furthermore, art. 77 c) identifies the very serious violation when NO be constitutive of crime.
The simple presence of drugs in the body is considered incompatible with driving.. Furthermore, the fact that the truck was immobilized by the Civil Guard after the positive drug result shows that the worker's conduct negatively affected the company's service.
The room,concluded considering proportional the extent of dismissal adopted, since the worker consumed drugs, knowing that he would be driving a vehicle transporting goods, which caused delays in service and the need for supply with another driver. This constituted a breach of trust in it by the company when it should have been extremely careful with those behaviors that could affect road safety.
Therefore, the Chamber dismissed the appeal and confirmed and declared the finality of the ruling of the TSJ of Andalusia, Malaga headquarters.
