a few weeks Ago the Constitutional Court (TC) declared null and void the dismissal of a worker for complaining about your company. Was a nurse in a day centre city that had gone to your town Council to move to such problems as material shortages or lack of personnel preparation. What he did after that, previously, their heads do turn a deaf ear to their protests. The reaction of the company was, in the first place, to admonish him for “disloyalty” and, a month later, fire by “decrease your performance and disobedience to his superiors.” The ruling, however, forces his readmission and remember that you complain about comes within the freedom of expression of the employee.
does this mean that there is bar free to criticize the company? Or a lot less. In litigation such as that described above, come into conflict two principles are legally protected: the right of workers to express themselves, and the duties of good faith and loyalty between the employer and the template. What prevails is not a decision that can be taken a priori, but that the judges are set depending on the circumstances of each case.
however, and as pointed out by the lawyers, there is a reality that cannot be ignored. In the work environment, it is difficult to speak of a genuine right to opine on the extent that many are afraid of retaliation or of being branded as employees conflicting. In this sense, Tomás Gómez, partner of the law firm, Abdon Pedrajas, notes that in the companies there is a “high degree of corporatism” and “not like” who criticize their management, especially if they denounce breaches of employment (as not to pay the extra hours) which can lead to high penalties from the Labour Inspectorate.
With the law in hand, David Tobia, managing partner of Sagardoy Lawyers in Catalonia, explains that anyone can present their complaints “within the company” because “can never be punished for exercising their rights.” A separate issue is to confuse the freedom of opinion “with the right to insult or use libellous”. The novelty is that, in your judgment, enter the judgment of the constitution is that it protects the workers also if stake their claims outside the organization. That is to say, that “there exists an obligation of loyalty that obligates the template to complain only to the entrepreneur, but you can do it in another environment”.
What is not protected is the employee intends deliberately to do harm to the company and its manifestations. In 2003, the TC refused to grant protection to a worker of a factory of explosives fired later report in an interview with the negligence in which it is committed. According to the judgment, the statements, which were produced after being demoted, only sought the “impairment of the public image” of the company. If what was intended was to rectify the deficiencies pointed out to the judges, it was not necessary that the information disseminated to achieve such “transcendence and reputation” and, in addition, there were other channels best where to communicate it in the media.
A similar criterion was followed by the Superior Tribunal of Justice (TSJ) of Catalonia when, in 2017, supported the cessation of a worker of a nursing home, after spreading, in the account of Facebook of your union, which in the centre was not good for the elderly. The chamber stated that the appellant had “committed to the image and credit” of the company with a clear profit of insulting.
In the worker's favor resolved, however, the supreme court of the Balearic islands when it declared improper the dismissal of a man who had sent a letter to the editor of your hotel group to report that he had been penalized two times unfairly by their direct chiefs. The court viewed positively the fact that the actor does not issue its complaint beyond the circle of business, and appreciated that the wording of the letter didn't have “mood libelous” or used expressions insulting.
the Internet and social networks have triggered conflicts that have to do with the free expression of the workers. And is that, on many occasions, surprised by the feeling of impunity with which many people act in the digital world, by issuing comments that would never dare to say in person to your boss or a colleague.
an Example of this was the case of a high school teacher in Madrid who created a blog in which you poured bitter criticism on the functioning of the school and concerned parents, students, and colleagues with expressions faltonas. The center fired him and he appealed against the decision. The judgment of the supreme court in madrid, 2013, denied that the website was “a work of fiction”, as alleged by the plaintiff, and noted that it exceeded “by far” in his freedom of expression. In one entry, for example, called another teacher a “witch”. And in another he wondered why his students “are a bunch of rude, charlatans, and plastas,” to which is replied: “Because their mothers are exactly like that.”
Finally, employees may not invoke their freedom of expression if they disseminate fake news about the company. A pilot, after being dismissed as commander, echoed in the Network of several comments that accused his airline of breaches in security. Upon the termination of his contract, the TSJ of Madrid gave the reason to the company and reproached the pilot has not made a check “reasonable” for the source of the information.
Updated Date: 20 January 2020, 04:00