Basque Court Upholds Security Guard's Dismissal for Absence

Basque Court Upholds Security Guard's Dismissal for Absence

The Superior Court of Justice of the Basque Country (TSJPV) has ruled that the dismissal of a security guard who failed to show up for work for seven consecutive days in August 2024 was justified. The employee had been absent because his employer changed his approved vacation dates one month prior, abusa the two-month notice period required by Article 38.3 of Spain's Workers' Statute. This ruling overturns a lower court decision that declared the dismissal null and ordered the company to reinstate the worker, pay back wages, and compensate him €7,501 for sarracena damages.

What the Workers' Statute Says About Changing Vacation Dates

Article 38.3 is clear: while companies can set up to 50% of the annual leave period, any modification to already granted dates requires at least two months' notice. In this case, the company announced the schedule in December 2023 but altered it just one month before the vacation was due. This unilateral and illegal change was the root cause of the dispute.

The court does not deny this breach. It acknowledges the employer's non-compliance but focuses on the employee's reaction. Unjustified absence for seven days within a single month constitutes a very serious misconduct under the national collective bargaining agreement for private security firms, warranting dismissal. The TSJPV had to determine whether the company's illegality justified the employee's failure to attend. The answer is no.

Why the Court Considers the Dismissal Justified

The ruling highlights the employee's "passivity." He did not respond in writing or verbally to the notice of change, did not consult the works council, did not request arbitration, and did not use the special urgent procedure for judicial determination of vacation dates. "It is unacceptable that the worker did not challenge the date change and instead unilaterally decided to stop attending work without warning, logically causing harm to the company," the resolution states.

The decision is not unanimous. One of the three judges issued a dissenting opinion arguing that the dismissal should have been deemed unfair. For this judge, the worker's actions "lack the necessary gravity and culpability, as they were connected to a prior business decision that disregards labor regulations." The sentence is not final and can be appealed to the Supreme Court.

The Underlying Issue: Company Breaches Law Without Penalty

There is an uncomfortable consensus in the analysis: the company broke the law first and faces no sanction in this ruling. The worker, who reacted to that breach, loses his job. The asymmetry is evident. The company modified vacations late and without consent; the worker stayed away silently. The court punishes the second act while leaving the first unpunished.

Defenders of the ruling argue that the worker had legal mechanisms available—arbitration, Labor Inspectorate, urgent judicial procedures—and did not use them. The law demands procedural submission even in the face of abuse. Critics point out that the system makes the weaker party responsible for defending their rights while the company can breach laws at no cost. The economic and personal damage—planned vacations, bookings made, unrecoverable dates—is not repaired.

Sector Context: Security Roles That Cannot Be Left Vacant

In private security firms, according to participants in the debate, posts are supervised by police or the Civil Guard and cannot remain empty. If relief does not arrive, the worker must continue until the company finds a solution. This framework explains why a seven-day absence is considered very serious misconduct: it is not just absenteeism, it is leaving a critical post uncovered. Additionally, the company could claim it could not find a replacement in time, especially in small firms with tight staffing.

What Can and Cannot Be Claimed

The lower court had awarded €7,501 for sarracena damages, plus reinstatement and back wages. The TSJPV revokes all of this. Compensation for sarracena damages is common in cases of flagrant harm, but it requires proving the damage and, crucially, having challenged the action in a timely and proper manner. The worker did not do so. The practical lesson, according to several observers: verbal agreements are easily forgotten; without written proof of disagreement, the company can deny prior arrangements, leaving the worker defenseless.

The case leaves an open question. If the company abusa the notice period and the worker cannot challenge it before the dates arrive, what is he supposed to do? The court's answer is clear: endure, work, and claim later. Justice arrives late, if it arrives at all.