It is not possible to fire the worker who is usually late, if she/he was never warned previously
The Social Chamber of the Superior Court of Justice of Asturias (hereinafter TSJ) confirmed, in a judgment of July 28th, the unjustified nature of a dismissal suffered by a worker who, for two years, was late for her job "almost daily."
The ruling in question warns that the company was able to learn of the worker's lack of punctuality at all times and tolerated such a practice for a long period of time. For more detail, the TSJ warns that, as the clinic had a very small staff, it was able to know at all times of the worker's lack of punctuality. However, "for a long time they tolerated the practice of the worker, who never before the delivery of the dismissal letter made it clear that she did not admit the delay she incurred ... ".
In the words of the Court, “ ... it is an unexpected reaction and disconnected from the tolerant attitude, at least passive, that it had maintained until then, which, as the trial magistrate underlines, is a good example that, at the very least, the company did not consider the behavior of the worker is relevant ... ”. Thus, such antecedents make the dismissal “an excessive response”.
In other words, the company went from tolerating the worker's behavior to terminating the employment contract, " ... without even going through the previous phases of sanction for minor or serious misconduct, if necessary, ... " argues the Social Chamber.
Finally, as if that were not enough, the TSJ acknowledges that the company has not proven any "specific harm" to the clinic itself or to other workers.