The gradualist theory in disciplinary dismissal
When the worker’s conduct is not based on objectivity, but on an act or conduct susceptible to assessment by the company, the classification of the dismissal must be consistent with the gradualist doctrine conferred by our highest courts.
To measure the degree of seriousness and culpability that a worker can be required to proceed with his dismissal, it is necessary to go to the gradualist theory.
Specifically, it is necessary to analyze each case, taking into account both the context in which the offense was committed, as well as the objective and subjective elements attributable to the worker: the intention, the circumstances, previous sanctions, etc. Jurisprudence based on the acceptance of the gradualist theory, requires the necessary and full adaptation between the fact, the person and the sanction, individually analyzing the circumstances of each case.
If the case occurs in which all the aforementioned elements are met, and therefore, the worker is guilty, it is at that moment when the employer may choose the origin of the dismissal, since as mentioned, when the elements are fulfilled, the worker commits with his conduct a most serious infraction, and therefore, the employer may proceed to disciplinary dismissal, as it is, in the same way, the most serious sanction provided for that can be imposed on a worker.
The art 54 of the ET states that the employment contract may be terminated by decision of the employer, through dismissal based on a serious and culpable breach by the worker.
To assess the seriousness of the worker’s conduct, in light of the so-called gradualist doctrine, common to all Sanctioning law, in order to maintain the proportionality between the fact and the sanction, in a work of equity (adjusted so that it does not violate the general limit that article 3.2 of the Civil Code imposes on jurisdictional bodies), Article 54.2 ET., in reference to disciplinary dismissal, requires that the worker’s conduct be not only infringing and guilty but also serious, which implies an evaluative judicial activity, following the so-called gradualist doctrine, which follows the criterion of proportionality, common to all penalizing Law in general and especially applicable in the labor disciplinary “ager” (S.T.S. of 9- 12-86 or STSJ of Galicia of 19-1-01).
Not every fault or infraction committed by the worker is punishable by dismissal, that is, the employer, when terminating the employment relationship, has to analyze all the elements to make sure that the offense committed by the worker is a serious and culpable offense.
Infringements are reflected in the aforementioned article 54 of the Workers’ Statute.
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Contractual breaches will be considered:
- Repeated and unjustified lack of attendance or punctuality at work.
- Indiscipline or disobedience at work.
- Verbal or physical offenses against the employer or the people who work in the company or the family members who live with them.
- The transgression of contractual good faith, as well as the breach of trust in the performance of the work.
- The continuous and voluntary decrease in normal or agreed work performance.
- Habitual drunkenness or drug addiction if they have a negative impact on work.
- Harassment for reasons of racial or ethnic origin, religion or convictions, disability, age or sexual orientation and sexual harassment or for reasons of sex of the employer or people who work in the company.
Individualization and proportionality
These conducts constitute an infraction by the worker who commits them, producing a breach of contract, but they do not have sufficient concurrence of seriousness and culpability.
Therefore, in this situation, an individualized analysis of the conduct will be carried out and a sanction proportional to the seriousness of the offense will be imposed.< /p>
The gradualist theory, therefore, consists in the individualization of the behavior of each worker and the proportionality of the sanction. In effect, the disciplinary sanction typified in a labor norm, such as business measure that tries to maintain the productive order in the company and that supposes a punitive reduction of some legal right of the worker, must be proportionate and suitable or suitable in accordance with the principles that justify it and the purposes it pursues (STS of January 15, 2009).
In addition, as established in the Supreme Court Judgment of January 25, 2005, it is necessary to remember that:
“since the dismissal sanction is the last due to its seriousness and transcendence among all those that can be imposed in the world of work, it must respond to the requirement of proportionality and adequacy between the act committed and the sanction imposed”.
As highlighted in the Supreme Court Judgment of July 19, 2010 “the prosecution of dismissal must be approached gradually, seeking the necessary proportion to the infringement and the sanction and applying an individualizing criterion that assesses the peculiarities of each specific case” (Judgments of February 28, 1990, May 14, 1990, May 16, 1991 and May 30, 1992). p>
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Martín Grande Ascaso
Labor Law Department