A judgment by the High Court of Justice of Aragón has declared the disciplinary dismissal of a worker that continuously refused to comply with the company’s anti-COVID-19 measures as justified.

Due to the health crisis resulting from COVID-19, since the month of March 2020 numerous regulations have entered into force to either prevent or limit the spreading of the virus. The breach of these regulations or the company policies adopted to prevent infection may lead to the disciplinary dismissal of the breaching employee.

In spite of the fact that vaccination in Spain is voluntary and, therefore, nobody can be forced to be vaccinated against their free will, rules have been established such as home confinement, the closure of certain establishments, the use of face masks, the preference for tele-work and the obligation to maintain a safe distance.

In this context, either as national or regional regulations or as a company’s own policy, the workers are obliged to strictly comply with the prevention procedures in force.

Article 5 of the Workers’ Statute fully acknowledges a worker’s duty to comply with the specific obligations of his/her position, in accordance with the rules of good faith and diligence, as well as the obligation to obey his/her employer’s orders and instructions. In this way and despite the fact that the rights to personal freedom, physical integrity and health enable the workers to freely decide whether or not they want to be vaccinated, what does not constitute a personal choice is to comply or not with the company’s protocols of prevention against COVID-19, provided they comply with the legislation in force.

In this regard, pursuant to the provisions set forth in said article 5 of the Workers’ Statute and in relation to article 54.2 thereof, which defines very serious infringements as “indiscipline or disobedience in the workplace” or “the breach of contractual good faith and the abuse of trust in the performance of work”, the breach of the company’s policies against COVID-19 may be grounds for disciplinary dismissal.

This was precisely the case recently subject to the judgment by the High Court of Justice of Aragón, of July 27, 2021, which declared the disciplinary dismissal of a worker that continuously breached the company’s policies and instructions on the prevention against COVID-19.

In particular, the judgment refers to the case of a worker belonging to a trade union that, amongst other breaches, refused to properly wear a mask in areas of the workplace where it was mandatory, after having been warned on numerous occasions.

Amongst other things, the plaintiff worker requested the annulment of the dismissal or, by default, its consideration as unjustified on the grounds of a breach of the guarantee of indemnity and right to trade union freedom due to an incorrect understanding of the definition of the penalty and breach of the gradualist doctrine in the decision to dismiss.

Nevertheless, the Labor Chamber of the High Court of Justice of Aragón concluded that the penalized conduct against the clear orders given by the company in a pandemic was particularly serious and reiterated, requiring special diligence in observing the ordinary and extraordinary health measures adopted and respect in the tasks of handling food.

The judgment specifically claims that given the situation of a pandemic, which justified strict measures of protection to prevent the risk of contamination of COVID-19, the plaintiff’s reiterated conduct had to be considered as a serious infringement that deserved disciplinary dismissal.

In short, personal freedom does not exonerate workers from complying with the obligations inherent to their positions, nor the company’s orders and instructions aimed at preventing the infection of COVID-19 and the breach of company policies in this regard may be grounds for justified disciplinary dismissal.

 

Álvaro Pérez Carmona

Departamento Laboral de Garrigues