A recent case puts disciplinary boundaries in retail and the use of video surveillance in the workplace once again at the center of the debate. At issue is a worker fired at Mercadona in Spain for allegedly eating products while on duty, a situation that ended up being considered in court.
According to Noticias Trabajo, a Spanish website specializing in legal and labor matters, the Superior Court of Justice of Castilla-La Mancha (TSJCLM) confirmed the validity of the disciplinary dismissal without compensation. The ruling found that the worker consumed croissants and chocolate biscuits on several days, without prior payment, understanding that this was a serious breach of contractual good faith and an abuse of trust.
Hidden cameras and stock imbalance
The internal investigation began after the company detected stock imbalances. According to the same source, after information to the Intercentros Committee, cameras were installed in the warehouse, which resulted in images used as proof of the repeated consumption of products without recording payment.
The worker had started working at the end of 2019 and was fired in March 2023. Stock images and reports supported the disciplinary decision communicated by the company.
Unsuccessful appeal
The worker went to court to challenge the dismissal. The Juzgado de lo Social no. 2 of Toledo judged the action unfounded, validating the disciplinary decision, rejected the action, validating the disciplinary decision. Unsatisfied, the worker filed an appeal with the Superior Court of Justice of Castilla-La Mancha.
The court rejected the claim to alter the proven facts, highlighting that the evaluation of the evidence belongs to the judge of first instance and that no obvious error was demonstrated through “radically exclusionary or blunt” documentation, the same publication states.
Video surveillance considered proportional
The appeal also invoked violation of the right to privacy and one’s own image, under article 18 of the Spanish Constitution. The TSJCLM applied the doctrine of the Constitutional Court and the Supreme Court and considered the measure justified by well-founded suspicions, adequate, necessary and proportionate, limited to the warehouse (outside rest areas) and with video surveillance signage in the center.
The collective highlighted that the recording took place outside rest areas and that, given the nature of the evidence, video recording was the ideal means of investigating possible infractions. Therefore, the test was considered valid.
No compensation for just cause
The worker also claimed that the infraction was time-barred, as there was an error in the dismissal letter (mentioning February 2022 instead of 2023). The court understood that this was a material error without actual prejudice, because the days of the week indicated corresponded to the 2023 calendar and the letter was dated March of that year.
Regarding the proportionality of the sanction, the worker invoked the “gradualist theory”, but the court considered that the conscious and repeated consumption of products without paying constitutes a breach of contractual good faith of the utmost gravity, breaking the trust essential to the employment relationship, regardless of the economic value involved.
The decision fully confirmed the first instance sentence, validating the disciplinary dismissal and excluding any right to compensation, points out. The court concluded that the worker was fired at Mercadona for eating products without paying and that the court upheld the decision after scrutinizing the evidence.
The case reaffirms that, in the face of consistent evidence, courts allow video surveillance in operational areas when communicated and used with proportionality. It also reinforces that breach of contractual good faith may justify disciplinary dismissal, even if the assets involved have reduced economic value.
What if it were in Portugal?
In an identical scenario in Portugal, the decision would depend on two axes: the seriousness of the violation of the duty of loyalty/good faith and the legality of the evidence obtained through video surveillance. From a substantive point of view, article 351 of the Labor Code defines just cause as the culpable behavior of the worker which, due to its gravity and consequences, makes the subsistence of the employment relationship immediately and practically impossible.
As for cameras, article 20 of the Labor Code prohibits the use of remote surveillance to control professional performance, but allows their use when aimed at the protection and safety of people and property (or when requirements inherent to the activity justify it) and imposes information and signaling duties. Use is also subject, as a rule, to *authorization from the CNPD, in accordance with article 21 of the Labor Code.
In practice, Portuguese jurisprudence has admitted images as evidence in disciplinary proceedings and in court, as long as legal assumptions are respected and it is concluded that the purpose was not exclusively to control the worker’s performance.
Procedurally, the disciplinary procedure must respect deadlines: the procedure must begin within 60 days of becoming aware of the infraction and the right to exercise disciplinary power prescribes, as a rule, one year after the infraction was committed (unless the act is also a crime), in accordance with article 329 of the Labor Code.
If the just cause was confirmed, the dismissal would not give rise to compensation. If the dismissal was declared unlawful (due to lack of just cause, relevant procedural defects or evidence considered inadmissible), as a rule, the employer is sentenced to reinstatement, and the employee may opt for compensation in lieu, in accordance with articles 389 to 392 of the Labor Code.
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