The Chamber recalls that NOT all activities carried out during the situation of temporary disability can be classified as unfair conduct punishable by dismissal.

Appeal 239/2025 is resolved against the ruling of the Social Court No. 26 of Madrid (orders 45/2024).

The worker had been providing services for a company in the metal industry sector in Madrid since February 10, 2020, with a contract for a specific work or service and the professional category of administrative assistant.

The conflict originates on the same day that the worker begins temporary disability leave (TI) due to “unspecified mood (affective) disorder.” That same day he performs in a concert at the FNAC in Plaza de Callao in Madrid, an event that had been previously announced on his public Instagram profile.  

The company proceeds to dismiss him on December 4, 2023, with effect from the same day, alleging deception, abuse of trust and violation of contractual good faith.

The worker was on sick leave from October 24, 2023 to November 15, 2023. The medical leave was issued on October 24 at 3:59 p.m., after the worker left his workplace three hours earlier to go to the doctor.

The worker had previously been in a prolonged IT situation, exhausting the 365 days on January 9, 2023, with the corresponding extension of 180 days and opening of a permanent disability (PI) file. The INSS denied the IP by resolution of 9/27/2023. The new withdrawal that began on 10/24/2023, within 180 days following said IP denial resolution, responded to a different clinical picture, being a new IT process. 

It is clear that the worker had been declared “fit” after the periodic medical examinations carried out in 2021 and 2023, and that in March 2024 he began working in another company. 

The lower court ruling declared it inadmissible the dismissal considering that the company had not proven serious and culpable conduct.

The company filed an appeal articulating two reasons: the review of the fourth proven fact and the complaint of regulatory violation. In relation to the first, the company intended to add, through Instagram screenshots, that the concert was not actually a recreational activity, but rather a professional presentation of the new album by the worker, who identified himself as a singer-songwriter, with signing of records and participation of other artists. Furthermore, the company maintained that the worker had hidden the existence of the concert from the company, although he had stated that he was unwell and had asked to be absent three hours before the end of his day to go to the doctor a few hours before the event.

The Superior Court of Justice of Madrid rejected the requested factual modification, understanding that the Instagram screenshots provided did not constitute authentic and reliable documents capable of evidencing a patent error in the evidentiary assessment, remembering that the factual review in supplication requires documents of exclusive effectiveness and that the assessment of the evidence corresponds to the trial judge.

Regarding the second reason,The TSJ analyzed whether the proven facts could constitute a violation of contractual good faith. He recalled the consolidated doctrine according to which good faith requires loyalty and probity, but its violation requires conduct endowed with sufficient gravity and intentionality.. Likewise, it reiterated that the situation of temporary disability does not prevent the worker from carrying out activities compatible with their state of health, as long as they do not hinder recovery or show simulation. 

In this case, the diagnosis of mood disorder did not make performing a concert incompatible, an activity that could even be emotionally beneficial. Nor was it proven that the worker had deceived the company, since he actually went to the doctor and obtained a valid sick leave. Furthermore, the proven facts did not include the time of the concert or the objective incompatibility with their work day, nor the worker's obligation to inform the company about extra-work activities.

The Court concluded that, although the company alleges that it is not fired for giving a concert while on medical leave, it should be noted that judicial doctrine has been pointing out that such a situation of Medical leave does not prevent the worker from leading a normal life or carrying out activities compatible with medical treatment., that do not harm or delay your healing. Therefore,  There was no serious and culpable conduct that justified disciplinary dismissal, confirming the inadmissibility declared in the instance.