An employee at an ophthalmology clinic in Spain was fired for being late 176 times in just half a year. Despite the seriousness of the facts, the Superior Court of Justice of Asturias considered the dismissal unfounded and ordered the company to pay him around 25 thousand euros.
Court understands that the company “tolerated” the behavior
The decision was based on an essential point: throughout the period in question, the employer had never warned or sanctioned the worker. For the judges, this lack of reaction was equivalent to “tacit tolerance”, which prevented the use of a disciplinary measure as severe as dismissal.
According to the Spanish portal Noticias Trabajo, the employee, hired since 2012, worked as an optician, working from 9:00 am to 1:30 pm and from 3:30 pm to 7:30 pm. The delays, recorded between March and August 2021, rarely exceeded a few minutes, but the company claimed that they compromised patient care and the clinic’s image.
Small delays, big consequences
In September of that year, management decided to proceed with the disciplinary dismissal, justifying it with repeated delays, occasional errors in clinical records and alleged lack of collaboration with colleagues. The worker appealed to the court and the first instance judge ended up finding her right.
The Oviedo Labor Court found that the clinic had never issued any prior warning or sanction, nor formally recorded the absences. Therefore, the dismissal was classified as unfounded and the company was forced to pay compensation of 24,987.38 euros.
The final decision of the High Court
The clinic appealed, insisting that the lack of punctuality was “very serious” and that their repetition compromised the service. However, the Superior Court of Justice of Asturias confirmed the decision, highlighting that the collective agreement does not allow converting minor offenses into serious offenses without formal registration.
The judges highlighted that the company’s behavior was inconsistent: for months, it tolerated delays and only reacted suddenly, without any prior warning. For the court, this sudden change of stance was disproportionate and unjustified.
Without proof of concrete losses, the sentence maintained the compensation and considered the dismissal inappropriate. The decision may still be appealed to the Supreme Court of Spain, according to the .
What if it were in Portugal?
In national territory, situations of this type are evaluated in light of the Labor Code, which requires a sequence of warnings, records and formal disciplinary procedures before applying dismissal for just cause.
According to article 351, dismissal is only legitimate if there is a “serious and culpable breach of the employee’s obligations”, making it impossible to maintain the employment relationship. The company must, however, prove the seriousness of the conduct and the proportionality of the sanction.
Furthermore, article 357 requires that there be a complete disciplinary process, with a note of guilt, the possibility of defense and a record of previous infractions. If the employer tolerated the delays without sanctioning them, it would be difficult for the dismissal to be validated by the Portuguese courts.
In practice, the outcome would be very similar to the Spanish one: without prior warnings, the dismissal would probably be considered unfounded, requiring readmission or the payment of compensation.
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