The dismissal of a worker for alleged unfair competition on social media is at the center of a court decision that raises questions about contractual exclusivity and limits on private activity outside working hours. The case involves an El Corte Inglés contributor with more than 11 years of experience and an Instagram post that ended up before the courts.
The worker had worked at the company for 11 and a half years, where she joined in 2012 as regional technical coordinator for international tourism, integrated into the tourism promotion department. He earned a gross monthly salary of 3,589.71 euros.
Disciplinary dismissal was reported on February 23, 2024, based on fraud, disloyalty and breach of contractual good faith. At issue was the promotion of products from a competing supermarket through his personal Instagram account, according to Spanish digital newspaper Noticias Trabajo.
Publication that led to dismissal
The employee owned an account dedicated to cooking recipes. In one of the videos published, he promoted discounts from a competing supermarket chain in the food sector, as part of the preparation of an enchiladas recipe. The company understood that this conduct constituted a very serious infraction, under the terms of the Convenio Coletivo and the Estatuto de los Trabajadores in force in Spain. He considered that the worker would be favoring a competing company.
However, the employee had not signed any contractual exclusivity clause that would prevent her from collaborating with third parties.
First court decision in favor of the worker
Disagreeing with the dismissal, the worker went to court. The Juzgado de lo Social no. 17 de Valencia ruled in favor and declared the dismissal unfounded. The company did not comply and filed an appeal with the Superior Court of Justice of Valencia, trying to reverse the decision.
In the appeal, the employer sought to demonstrate that the worker had adhered to the internal ethical code, attaching a screenshot as evidence. However, the court rejected this argument, since the document presented did not identify the employee by name, but only through a numerical code not unambiguously associated with her, according to the same source.
Allegation of unfair competition
El Corte Inglés maintained that the publication constituted unfair competition, arguing that, by promoting products from a rival supermarket, the worker would be satisfying a private interest to the detriment of her employer.
He also argued that, despite performing functions in the tourism sector, the position involved projecting the company’s corporate image, meaning he should not advertise a direct competitor in the food sector.
Understanding of the Superior Court of Justice
The Superior Court of Justice of Valencia confirmed the previous decision and considered the dismissal unfounded. The judges explained that, for unfair competition to exist, it is necessary for the worker’s activity to focus on the same market and target the same potential clientele, using knowledge acquired in the company and causing real or potential damage.
In the specific case, the worker worked in the international tourism promotion department, tasks that the court described as completely unrelated to supermarket activity.
Furthermore, he was not a public figure associated with the company’s image. Your private Instagram activity was not automatically linked to your professional role. Even admitting that the collaboration with the supermarket could have been remunerated, the court highlighted that there was no exclusivity pact and that the areas of activity were different, according to the same source.
Compensation of almost R$45 thousand
In view of these elements, the judges concluded that the measure applied was disproportionate and that the employee’s conduct did not reach the level of gravity necessary to justify the termination of the contract. The company’s appeal was rejected and the dismissal decision was upheld, with an order to pay compensation of R$44,787.78.
The court did not grant El Corte Inglés the possibility of choosing between reinstatement of the worker or paying compensation, as this option had already been exercised in a previous instance. The decision was not final and could still be appealed to the STF, according to the .
Legal framework in Portugal
In Portugal, the applicable regime is set out in the Labor Code. Unfair competition on the part of the employee is regulated in article 128, which imposes the duty of loyalty, prohibiting the exercise of competitive activity during the term of the contract, unless authorized by the employer.
However, for there to be grounds for dismissal for just cause, under article 351 of the CLT, the behavior must be culpable and make it immediately and practically impossible to maintain the employment relationship.
The simple promotion of products from a competing company on personal social networks would not automatically justify dismissal in Portugal. A serious breach of the duty of loyalty and sufficient gravity for just cause would have to be proven. Furthermore, Portuguese courts tend to analyze the proportionality of the disciplinary sanction applied, assessing whether there was harm to the employer.
In a similar case, it would be likely that a Portuguese court would analyze whether there was effective competition, whether the worker used privileged information or company resources and whether there was an exclusivity or non-compete pact.
In the absence of these elements and if no concrete damage has been demonstrated, the dismissal could also be considered unlawful or unfounded, with the right to reinstatement or compensation, under legal terms.
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