The Superior Court of the Social Chamber of the Basque Country (TSJPV) declared the resignation of a Mercado worker, following an incident that occurred in July 2023, in which the employee called “clown” to her boss.
The decision obliges the company to reintegrate the employee and to pay him compensation in the amount of 10,000 euros, in addition to the delayed salaries since the date of dismissal.
The case: a sentence or a serious foul?
It all happened on July 8, 2023, when the employee reacted to criticism of the state of the fishmonger section, exclaiming, in the presence of a colleague, “clown, she is a clown.”
The Mercado considered the behavior a serious misconduct to respect, justifying the dismissal based on Article 54.2.b) of the Spanish Workers Statute and the rules of its collective agreement.
Court did not see enough gravity
Bilbau Social Court No. 5, in the first instance, had already given reason to the employee.
The company appealed, but upheld the decision: although inadequate, the expression was not enough gravity to justify the maximum sanction.
In addition, it was not proven that the insult was directed directly to the coordinator or that it had been heard by customers.
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Context of possible discrimination
The judicial decision also mentions that the dismissal occurred in a delicate context: the employee and his wife, also a market maid, were involved in a judicial process related to the right of family conciliation.
The proximity between the process and the dismissal has raised doubts about a possible retaliatory motivation by the company.
Mandatory reintegration and compensation for moral damages
With this decision, the Mercado must reintegrate the worker in the same post and pay her compensation of 10,000 euros for moral damages.
In addition, it will have to settle all unpaid salaries since the date of dismissal. So far, there are no public statements from the company about the decision.
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