Cocinero despedido por abusar de su hobby estando de baja

A chef is fired for abusing his hobby while on sick leave

The Canary Islands Justice has ratified the admissibility of the dismissal of a worker who was on sick leave due to stress but who carried out activities that were not compatible with his work situation, although he considered them a hobby, a process in which private investigation has provided extremely valuable information.

The employee had been providing his services as a cook, full-time and with an indefinite contract, at the Elegant Excursions company since mid-2016 and suffered episodes of anxiety due to the high workload that his work entailed, so in the month of October 2021 requested temporary disability, which was maintained until early March 2022.

Faced with this burdensome unforeseen event, and the doubts that this condition could last so long, the company resorted to hiring private detectives, who discovered that during that period of time the cook had dedicated himself to tanning leather, having developed various paid upholstery projects, specifying the dates, since between December 22, 2021 and February 19, 2022, he went to a location where he allegedly carried out such activity for several hours a day.

In the subsequent trial, the company presented evidence that showed that the employee had acquired various fabrics in specialized establishments in the textile sector. For their part, the detectives revealed that when they contacted him to ask him to upholster some chairs and ask if he could sell them some leather items at that time, he responded affirmatively, but that “he was overworked and it might take a while.” So he referred them to a Facebook page in which he displayed some of his work and items for sale, telling them that he also worked with armchairs and that he even had an upholstery course.

After collecting all the information regarding the case and analyzing it, the company decided to dismiss the cook, on February 23, 2022, citing as reasons a “transgression of contractual good faith, as well as an abuse of trust in the performance of the job.” , based on article 54.2 d) of the Workers’ Statute (ET). The burofax sent to the employee made mention of a “simulation of illness or accident to avoid attending work”, and the express prohibition contained in the State Labor Agreement for the Hospitality Sector of carrying out work for others or self-employment that has as consequently the extension of the leave due to temporary disability.


A ‘hobby’ that helped improve his illness


Faced with this disciplinary dismissal, the worker filed a lawsuit based on the fact that the activities of tanner and upholsterer constituted only a hobby that helped him overcome his illness as well as provide him with some extra income, since his own was meager. Although the Social Court number 5 of Santa Cruz de Tenerife, which investigated the case, partially upheld the claim, it endorsed the admissibility of the dismissal.

Given his disagreement with the sentence, the cook filed a petition with the Court of Justice of the Canary Islands, in which he requested a review of one of the facts, which was completely rejected, with which the body fully ratified the proper dismissal. coming to determine that based on the jurisprudence established by Chamber IV of the Supreme Court, the severity sufficient to justify a dismissal due to temporary disability must arise from the performance of activities incompatible with the medical situation, both by jeopardizing healing and by demonstrate aptitude for work. In this sense, simulation, whether due to improper attribution of symptoms or invention of pathologies, can involve a violation of contractual good faith, which reinforces both the company’s decision and the first verdict.

According to the magistrate responsible for the case, “a manual activity such as leather tanning,” although “it can contribute to a relaxing situation” that helps improve mental health, when practiced constantly several hours a day, up to the point that it can lead to the acceptance of orders that cause ‘work saturation’ and delays in the preparation of orders, it can entail an effort and a ‘work load’ such that the hobby, “far from contributing to the improvement of the psychological situation”, worsens it. The ruling concludes that, taking into account the unnecessary delay of the temporary disability and the practice of an activity incompatible with recovery, thanks to which money is obtained, the disciplinary dismissal is fully justified.

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