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A Spanish ruling on a case that should be commonplace

By 6 Outubro, 2022Novembro 2nd, 2022No Comments

Spanish jurisprudence is also a source of suggestions for cases which may well occur in Portugal. The fact that each of the autonomous communities has its own judicial organisation leads to a multiplication of judgements on a wide variety of issues, most of them common anywhere.

One such issue has now been decided by the High Court of Justice of the Balearic Islands (TSJIB). The case is simple: an employee of a certain supermarket in Majorca – with 25 years of service without any disciplinary occurrences – was found, at the end of a day, to be sneaking a set of expired products into his car, to be thrown away.

There was an internal rule that employees of the supermarket were not to take personal possession of articles intended for disposal. That rule, which was applied in a tolerant manner by one of the shop’s coordinators, was taken very seriously by another, who suspected the employee and kept a discreet eye on him, surprising him in the act.

The company dismissed that worker on the ground of a ‘very serious’ offence.

In the action contesting the dismissal, the company claimed that the worker had removed the products concerned from the shelves ten minutes before the supermarket closed, so that they might still have been sold; and that, in any event, the products were company property until they were in the bin outside the premises.

The TSJIB considered that the sanction was disproportionate, as it concerned products that were going to be thrown away and there was no indication as to the degree of seriousness that would be attributed to their deviation.

At the same time, the court pointed out that the disciplinary sanction has primarily a preventive rather than a retributive effect, so that “a prior warning might have been sufficient to avoid non-compliance”.

Who knows how a Portuguese court would decide?

António Monteiro Fernandes @ Of Counsel, DCM | Littler