Can I fire someone who has tried to steal from the company?
Unfortunately, it is quite often the case that a worker appropriates or steals (the difference between “theft” and “robbery” is basically that for “robbery” to occur, it must have been done by force, intimidation or violence against persons or things) objects or items belonging to the company, his or her employer. When this happens to our clients, they often ask themselves whether, when such conduct is detected, they can be dismissed for disciplinary reasons or, on the contrary, this will not be appropriate and, consequently, they should first impose a sanction, such as a suspension from employment and salary.
What do the Courts and Tribunals consider when assessing disciplinary dismissal?
Beforehand, it should be considered that the Courts and Tribunals, when assessing whether the disciplinary dismissal carried out is fair or not, take into account:
- The facts that have occurred, detailed in the letter of dismissal, and proven in court.
- Whether they are in line with any of the offences considered as very serious in the applicable Collective Bargaining Agreement, and/or in article 54.2 of the Workers’ Statute, which allows for disciplinary dismissal.
- If, applying the principle of proportionality, and analysing not only these facts, but also their seriousness and the employment relationship between the worker and the company, disciplinary dismissal would be appropriate, instead of a less drastic sanction, such as a written warning or suspension from employment and salary.
Until now, there was no doubt that a worker who had stolen something of high economic value from the company, i.e. causing very serious economic damage, could in most cases be dismissed directly for disciplinary reasons. However, it has always been controversial whether disciplinary dismissal was in accordance with the law, directly, when the theft was small, and the worker had not been previously sanctioned.
Well, recently, the Supreme Court has published the Sentence 750/2023, dated 17 October 2023 (RCUD. 5073/2022), which declared the disciplinary dismissal of a cashier of a supermarket in Vitoria, with four years of seniority in the company without being sanctioned, who tried to steal items worth €5.52 from the employer.
If the theft is of small value, can disciplinary dismissal be enforced?
Firstly, breach of contractual good faith is grounds for disciplinary dismissal, as well as breach of trust in the performance of work, in accordance with the provisions of article 54. 2 of the Workers’ Statute and, furthermore, the misappropriation of promotional samples or any other type of article, discount or benefit intended for customers, regardless of whether or not it has market value, as well as misappropriation, theft or robbery, both to the company and to any person within the company’s premises, or in any other place during working time, is also classified as a very serious offence in the applicable Collective Bargaining Agreement, in addition to the aforementioned.
Secondly, every employee has a duty to act in good faith in his or her employment relationship with the company for which he or she works. By stealing from the employer, it is not only evident that the employee is acting intentionally and in bad faith, but also that direct economic damage is caused to the company, and even the personal situation of the staff working in the establishment from which the goods were stolen is compromised.
Thirdly, regardless of the greater or lesser economic damage caused by the value of the stolen objects, what is relevant is that, once such conduct has been detected, it is obvious that the trust placed by the company in the worker has been broken and is practically irreparable. Therefore, sanctioning her by means of a written reprimand or suspension from employment and salary will obviously mean that the employee will continue to perform the same job with the same functions by means of which she tried to carry out the theft, having undermined the trust in her.
In conclusion, even though it was an attempt to steal objects of very little economic value, the disciplinary dismissal of this person was considered appropriate, as the Collective Bargaining Agreement considers his or her actions to be a very serious offence and, through them, he or she breached the good faith with which he or she should have acted, and the trust placed in him or her by the company.
Do you need advice? Access our areas related to disciplinary dismissals: