Dismiss for browsing the internet? Why the Collective Agreement is your first line of defense
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In the day-to-day of an SME, discovering that an employee has spent 57 hours of their workday on personal tasks —such as preparing for exams or using private clouds— is often seen as a justifiable reason for dismissal. However, recent case law from the High Court of Justice of La Rioja urges caution: an error in assessing the offense can turn a "justified" dismissal into a compensation of almost 40, 000 euros.
Case Analysis: When evidence is not sufficient
The case analyzed by the Social Court of the High Court of Justice of La Rioja confirms the unfairness of the dismissal of a commercial technician who made 1, 085 connections to websites unrelated to their professional activity in just two months. Despite the company proving the misuse of the equipment, the court has imposed compensation of 39, 083. 61 euros.
The reason? A technical discrepancy between the severity perceived by the company and the classification established in the applicable labour regulations.
The Collective Agreement: The limit to the sanctioning power
Many companies make the mistake of turning directly to the Workers' Statute and its concept of "breach of good faith" to justify a dismissal. However, in this case, the Chemical Industry Agreement prevailed due to a specificity issue:
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Typicality of the offense: The agreement already included the misuse of IT resources, but classified it as a serious offense, not a very serious one.
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Proportionality: According to the regulations, it is not possible to apply the maximum penalty (dismissal) if the conduct is previously categorized with a lesser penalty. Skipping this legal step invalidates the company's decision to terminate the contract.
The importance of proving economic and productive harm
The Court highlighted a critical point for any business defense strategy: the absence of proven harm. Despite the 57 hours of browsing, the company could not demonstrate:
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Decrease in performance: The employee's work was not below that of their colleagues.
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Impact on third parties: There were no client complaints or delays in workflow.
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Continuity in functions: The worker, despite the distractions, continued to meet their main objectives.
For a dismissal due to low productivity to be viable, case law requires that the decrease be voluntary, continuous, and quantifiable through comparative metrics.
The employer's right to audit IT resources is legitimate, but its implementation must be surgical. Having a legal notice on the devices is a necessary step, but insufficient if there is no consistency with the scale of penalties in the agreement.