Despite the approval of a law in this regard, a teleworker without second home Wi-Fi fired as teleworking continues to generate legal doubts that, sometimes, end up resolving justice.

This is the case of the judgment issued on October 20, 2021, by the High Court of Justice of Madrid (TSJM) -to which reference is made in this news of the Information - and that endorsed the dismissal of a teleworker who moved to a second residence without Wi-Fi.

Before the coronavirus pandemic, according to data from the National Institute of Statistics (INE), only 4.8% of workers in Spain did it normally (or more than half of the days) from home. While 3.5% telecommuted occasionally.

Although the percentages represented a slight upward trend, they were below the European average. With the first wave of COVID-19, teleworking multiplied, and, after a recovery of the presence, it is being reapplied in recent times before the tremendous power of contagion of the omicron variant.

All this led to the publication in the Official State Gazette, on July 10, 2021, of Law 10/2021 on remote work, understood as “that which is carried out outside the usual establishments and centres of the company, and of which telework is a subspecies that involves the provision of services with new technologies”.

Teleworker without second home Wi-Fi fired

One of those cases in which justice has had to intervene, to give, on this occasion, the reason to the company, is that of a worker who provided his services with the category of teacher of Special Education and coordinator of Information Technology and Communication (ICT) in a company dedicated to Special Education.

The employee's performance - highlighted in the dismissal letter included in the judgment-already had deficiencies before teleworking.

Specifically, in September 2019 it was entrusted with the programming and implementation of an academic management platform.” He was told and insisted that the operation of it had absolute priority, " the company says.

In the month of November 2019, they continue, “we are obliged to insist once again on the priority nature of the task entrusted, since the platform still does not work properly”.

Finally, they explain, at the beginning of December " the problem was solved in just a few minutes through a simple phone call by 3 teachers. If you had contacted the platform, you would have accomplished the mission, however, you chose not to do anything."

Decision behind teleworker without second home Wi-Fi fired

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Teleworker without second home Wi-Fi fired

In short, they add, “you have incurred in laziness in your job and total abandonment of your functions as responsible ICT, having caused this a serious damage to the school, because from September to December 2019, teachers have not been able to program on the platform".

They also alleged that it was not the first time that he abandoned his duties, “but that it is frequent that the incidents that arise from the teachers do not end, and we must reiterate that he agrees with them to close any incident”.

On march 11, 2020, and following the request of the worker, it was granted the mode of telework with “the obligation to send the daily task coordinators or management team in order to record the daily, as well as the need to work with wi-fi and equipment adequate to enable this mode of work, as well as to be contactable and available throughout the day via mobile phone and email and have availability to attend the Centre face to face”

The company, noted in the letter, was aware that the worker had not remained at his usual home, but had moved to a second residence, “thus contravening both the indications given by this company so that you have ease to go in person to the Centre to perform their tasks, as the limitations on the freedom of movement of people imposed by Royal Decree 463/2020 of March 14, by which the state of alarm is declared”.

To this is added, they express, “that in that home you do not have Wi-Fi connection, so you work with mobile data connection, with the consequent limitation that it has, and that it takes a long time to do tasks, as you yourself have ended up recognizing. This causes their tasks to be conditioned by this situation, remaining their working day doing practically nothing"”

Accusations of the employee teleworker without second home Wi-Fi fired

They accuse the employee of being " more than a month with hardly any activity, limiting himself to sending an email a day (sometimes even that), with hardly any content or work, we understand that with the sole purpose of justifying his presence. Also highlighting that from March 11 and until April 20 you do not send day registration, you never connect early as you should, do not answer emails and incidents, or answer them late. In short, it is not available to teachers as it should, providing computer support, being the same absolutely essential at this time, and you know this extreme”.

Based on these facts, the company dismisses the worker by virtue of the provisions of Article 54.2 of the Workers ‘Statute, section’ d ‘, which establishes as a cause "the breach of contractual good faith", and section’ e', which refers to: "The continued and voluntary decrease in performance of normal or agreed work".

They are also protected by article 65 of the General Collective Agreement on centres and services for the care of persons with disabilities, which establishes as a cause "fraud, disloyalty or abuse of trust in the entrusted actions".

The worker filed a lawsuit that was dismissed by the Social Court No. 38 of Madrid, "declaring the dismissal of the actor appropriate"”

An appeal was lodged against this judgement, which was dismissed by the Supreme Court in the judgement in question.

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