Employee reinstated by court after being late 176 times in five months

Employee reinstated by court after being late 176 times. The High Court of Justice of Asturias holds the dismissal to be “disproportionate”.

The High Court of Justice of Asturias (TSJA) has ordered an ophthalmology clinic in Oviedo to reinstate an employee after declaring her dismissal to be unjustified despite being late to work 176 times over five months.

The Asturian high court dismissed the clinic’s appeal, stating that the company initially tolerated her lack of punctuality and, “without prior warning, requirement, communication and much less a sanction for lack of punctuality”, gave her the letter of dismissal in a response that it described as “disproportionate, disproportionate and unreasonable”.

In September 2021, the company notified the worker of his disciplinary dismissal, alleging that he had committed up to 176 punctuality offences in the period from March 3 to August 8, 2021.

In detail, the clinic counted delays of up to 6 minutes and 26 seconds on arrival in the morning and 8 minutes and 1 second in the afternoon.

In this regard, the ruling states that the plaintiff who had been employed as an optician since 2012, worked from 9 am to 1.30 pm and from 3.30 pm to 7.30 pm and at the start of the working day she first put on her uniform and then clocked in on the time register and on leaving she clocked out and then changed into her street clothes.

The judgement states that the dismissal was an “unexpected and disconnected” reaction to the “tolerant and at least passive” attitude the employer had maintained up to that point, which makes the dismissal “an excessive, disproportionate and unreasonable response”.

The worker brought her dismissal before the Social Court, which declared the dismissal unjustified and ordered the clinic to reinstate her.

The clinic had appealed to the TSJA arguing that due to the pandemic it had stressed to the employees the importance of punctuality at work and that the plaintiff was aware of this.

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