The TSJ of La Rioja confirms the ruling of the Social Court No. 3 of Logroño dated August 2, 2023 that declared the dismissal of a supermarket worker inadmissible and forces the company to reinstate him with the same conditions he had and pay him the salary he had stopped receiving, or compensate him.

The employee had the category of cashier assistant while also performing the duties of a trusted person of the center manager, and received notification of his dismissal due to his lack of willingness and involvement. According to the company, he had very seriously failed to comply with internal rules due to the position of responsibility he held in the store's management team, and classified his unjustified absences from work as non-compliance by the employee, constituting a very serious offense deserving of dismissal.

The question raised revolves around whether the appealed ruling properly applied the gradualist theory to assess the proportionality of the dismissal sanction imposed on the worker for his conduct. The gradualist theory requires a certain severity in the conduct attributed to the sanctioned worker, which requires a necessary individualization of the same and the concurrent circumstances, in order to be able to reach a "sufficient adequacy" between the conduct, the guilt and the sanction to be imposed, since dismissal is the maximum sanction that can be imposed.

Furthermore, with regard to disciplinary or sanctioning issues, all aspects, objective and subjective, must be weighed, since perfect proportionality and adequacy between the fact, the person and the sanction is required, and it cannot be operated objectively and automatically, but rather a specific and individualized analysis of each specific case is necessary.

For this reason, for the TSJ the sanction of dismissal is disproportionate, given that this undocumented justification was verbal and the worker's repetition of transgressive and non-compliant conduct has not been proven. This conduct is based on disagreements with the person in charge of the store, whose knowledge was not direct, but rather through the reference of other workers, which means that the circumstances are insufficient to justify the extinctive decision adopted by the company.