A security guard will be compensated because his company transferred him to another workplace in retaliation for critical comments on Facebook. In them he denounced the lack of sanitary measures adopted by Spanish employers to protect their workers against the pandemic.
This has been confirmed by the Superior Court of Justice of Asturias. Employers cannot invent sanctions to punish critical employees. For example, modifying schedules or workplace. These changes are punishments that violate the exercise of fundamental rights.
How they collect the facts (available here), the operator used expressions such as “business caste”, “morality lessons” or “heroes and wretches” in his profile to criticize that non-essential workers remained in their jobs despite not having masks or protective screens in the early days alarm status. In some comments, the watchman even made a direct reference to the client for whom he was serving, and attached an image of the exterior of the factory.
This was the final straw for the company, which dismissed his behavior as unacceptable and decided to suspend him from employment and salary due to a very serious lack of discipline. He also ordered his forced transfer to another work center, thirty kilometers from the first and with new hours, for “operational reasons” and “the loss of customer confidence.”
Reprisal
The watchman denounced that the requirements to unilaterally modify his contract were not met, since the law includes a list of specific causes. The firm, for its part, alleged that a “climate of hostility towards the company” had been created and that “the right to freedom of expression is not absolute”, so that the transfer was the only solution.
Justice agrees with the employee and accepts that he was the victim of retaliation for exercising freedom of expression. He thus rejects the company’s argument, which argued that these were more beneficial conditions because it was a position closer to his home.
Consequently, the Chamber condemns the company to compensate the employee with 6.251 euros, as well as to take charge of the costs of the process, and to return the guard to his original position.
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