In this case, the employee communicates to the company his intention, after finishing the enjoyment of his vacation, to marry and begin the enjoyment of the marriage leave. When he incorporates the job, the company reproaches him that he has enjoyed the marriage leave without his authorization and requires justification of the marriage. It provides a foreign document that is not admitted by the company and the worker starts a temporary disability process for anxiety. While he is on sick leave, the company is aware that he was dancing and consuming alcoholic beverages from 2:00 to 4:00 in the morning in a nightclub.
The company considers that both events, the lack of justification for marriage absence that was not authorized, and the night party, represent a very serious fault for missing work unjustifiably more than 3 days to work, and a very serious fault for unjustified prolongation of his temporary disability process with violation of the principle of good faith and loyalty. Therefore, it proceeds to the disciplinary dismissal of the worker.
The worker files an application for dismissal that is estimated by the social court that declares the dismissal unfair, and then the company files an appeal to the High Court of Justice which dismisses the company’s appeal and confirms the inadmissibility of the dismissal for the following reasons:
a) Regarding the lack of authorization and justification of absences due to marriage leave. The High Court of Justice reminds that article 37.3 of the Worker’s Statute establishes that the worker after giving prior notice and justification, may be absent from work, with the right to remuneration, for certain reasons, including 15 days in case of marriage. Therefore, it considers that there are 2 and not 3 the requirements that the Worker’s Statute requires: a) prior notice and b) justification. So there is no need a company’s authorization. In addition, in this case, as it was not established that there are exceptional circumstances, it is understood that the company was given sufficient notice period and the worker presented a justification of the marriage celebrated and its inscription in the Spanish Registry.
b) Aggravation of the temporary disability situation. The High Court of Justice states that the jurisprudence of the Supreme Court establishes that, among other cases, there is a breach of contractual good faith during the temporary disability situation, provided that the activity performed is of such natures that prevents or dilate the cure. But no transgression is seen by performing physical exercises or activities that are not harmful to the course of the disease, or recreational activities, unless they attempt against the treatment or are incompatible with the IT situation. That is, the situation of sick leave for temporary disability is not a punishment that prevents the worker to make normal life or the development of activities compatible with medical treatment, if they do not harm or delay their cure. In this case, the company has not even shown any indication that this activity of the worker has an impact on the disability situation, so the claim must be dismissed.