Labor Chamber Four of the Supreme Court has ruled that companies can deduct the time a worker arrives late to work from his/her salary if it is on a regular basis. The Court considered that “if the failure to provide services is solely attributable to the worker who arrives to work late, the services provided do not coincide with the remuneration accrued”.
In the case resolved, a claim was filed in a collective dispute against a company operating in the contact center sector for its practice that was considered as unlawful of directly deducting the time the workers clocked in late from their monthly salaries. The applicable national contact center collective bargaining agreement considers arriving late as conduct subject to a minor, serious or very serious infringement.
The Supreme Court upheld the practice due to the fact that the company provides contact center services under commercial contracts with clients that are based on the number of hours and even half hours and that the unjustified delay of a worker commencing work may give rise to penalties imposed upon the company.
The judgment states that “art. 30 WS establishes that workers shall maintain their right to receive their salary if the failure to provide services is attributable to the company and not the worker. Otherwise, if the failure to provide services is solely attributable to the worker because he/she arrives late to work without a good reason, the provision of work for which remuneration accrues does not take place”. As a result, “if a worker fails to provide the services that he/she is obliged to perform under a bilateral employment contract, without a good reason, his/her salary does not accrue, but he/she is not subject to a fine”.
The case analyzed by the judgment is different to those in which the Supreme Court had declared the imposing of a fine, given that in such cases the workers had accrued the relevant salary, of which they had subsequently been deprived due to a covert fine. The difference to the case at hand is that salary had not accrued for the period claimed, which meant that the appeal in cassation had to be dismissed.
The judgment concludes by declaring that the collective bargaining disciplinary regime does not impose a duty on the employer to pay salary when the failure to provide services is solely attributable to the worker, as the services are provided in shifts at specific times and the company workers are not entitled to work at other times to make up for arriving late to work, without a good reason, once their timetable has been determined.
The judgment includes a dissenting opinion that considers that the deduction made by the company constitutes a “fine”, understood as a penalty imposed by the employer upon a worker for breach of contract that consists in the forfeiting of a certain salary item effectively accrued by the worker, which is not contemplated in the applicable collective bargaining disciplinary regime. The dissenting magistrate concluded that, pursuant to the legal mandate established in article 58 of the 2015 Workers’ Statute, “infringements, their degree and the penalties applicable must be based on legal or collective bargaining agreement provisions and the deductions of such amounts is not supported by any provision whatsoever”.
Although a detailed analysis of each particular case is required, this judgment establishes the precedent that the employer can consider deducting remuneration for time voluntarily not worked from an employee’s salary, without it being considered as a disciplinary fine, but rather as a deduction from salary due to the absence of work.
Garrigues Employment & Labor Law Department