Aspects to take into account when sanctioning a worker
Disciplinary powers allow you to punish your employees if they break company rules.
Find out about the limits of this power and what you need to bear in mind to minimise the risks in the event of a challenge.
Imposition of a sanction
The measure must be proportionate
Infringement
In the imposition of disciplinary sanctions, the necessary proportion between the offence and the sanction must be sought, and individual criteria must be applied that take into account the peculiarities of each specific case.
For example, if an employee who has been working in your company for ten years makes a technical error for the first time that can be rectified, imposing a very high sanction will be considered disproportionate.
Seriousness and culpability
It is true that, according to the law, it is up to the company to decide whether to impose a sanction or not.
However, the sanctioned conduct must be defined in the applicable collective agreement and, in cases of higher sanctions or dismissal, there must be gravity and culpability.
Reasons you can prove
Letter of penalty
In the event that you impose a disciplinary sanction or dismissal and your employee contests the measure in court, your company will not be able to provide reasons in court other than those contained in the written notice of such sanction or dismissal.
Therefore, when drafting the notice, be as explicit as possible: describe in detail the alleged misconduct and the facts that led to this decision and indicate the date on which they occurred.
Recommendation
Although in the notification of the disciplinary sanction or dismissal you do not have to indicate the means of evidence at your disposal (recordings, detective reports, witnesses…) and these can be reserved for the time of the trial (if any), it is advisable to indicate the names of the potential witnesses and to explain minimally how the evidence was obtained (or at least to point out how the evidence was obtained).) and these may be reserved for the time of the trial (if there is one), it is advisable to indicate the names of potential witnesses and to explain minimally how the evidence has been obtained (or at least to indicate that a procedure in accordance with legal requirements has been followed to obtain it).
Content of the sanctionletter
In short, when you prepare the letter of sanction or dismissal, indicate clearly and in detail the alleged facts, the date on which they occurred, the damage caused…
If there are witnesses, you can include their names or not (decide depending on the circumstances of the case); not including the witnesses in the letter does not harm you because later, at the trial, they will be able to testify as well.
The key is that the employee knows the facts so that he/she can defend him/herself later in a possible trial (so that he/she cannot claim defencelessness because he/she does not know the facts).
At the same time, gather all the necessary evidence in case the matter ends up in court (without having to mention it in the letter).
For example:
- customer complaints
- evidence of damage caused
- recordings
- detective reports
- previous final sanctions
Is there a prior tolerance?
It has allowed certain behaviours
Accepted
In most companies there are “acts of tolerance”, i.e. situations or behaviours that violate some mandatory rules, either instructions from the employer or rules established in the collective bargaining agreement, are accepted and condoned.
This tolerance reduces the seriousness and culpability of apparently punishable acts.
Modification
If your company has been tolerating behaviour that is punishable, it cannot change suddenly and start to punish without first informing employees that it is going to change its policy in this area.
However, for the company’s actions to be considered permissive and tolerant, they must be sufficiently serious, i.e. the employees must believe that there is a clear will on the part of the company to accept certain breaches as not punishable.
If the company does not carry out acts that significantly demonstrate this permissive will, then such tolerance cannot be presumed.
Recommendation
Therefore, break the tolerance by issuing a non-disciplinary warning to the employees, as you will no longer tolerate certain behaviour (as it is not a disciplinary sanction, it cannot be challenged).
In this way, the tolerance regime will have been broken and if, after the warning letter, breaches are repeated, disciplinary sanctions can be imposed (this is no longer a surprise reaction by the company).
Communication
With regard to the content of this warning, please include the following mentions:
Non-compliance
- Non-compliances or situations that the company has been tolerating up to now (not clocking in and out, using the computer or e-mail for private purposes, some workers not wearing the work uniform, etc.).
Sanctionable
- If the breach is covered by the collective bargaining agreement as an employment offence, indicate the relevant article. If what is being breached is a company instruction, challenge it.
Warning
- Finally, indicate that the company will take appropriate disciplinary action as soon as the communication is sent. Also issue regular reminders about the obligation to comply with the rules of conduct.
Example
In the case of private use of the company’s electronic media:
- Tolerance is understood as tacit consent to the prohibited use of electronic media. Therefore, it is not valid for the company to suddenly and unexpectedly exercise its disciplinary power against employees who make personal use of electronic media from one day to the next if they have been doing so for a long time without any consequences. This would be contrary to contractual good faith.
- In any case, even if there has been such tolerance, you may take monitoring and control measures when you deem it appropriate and impose sanctions if you detect non-compliance, provided that you previously inform the employees that from that moment on you will proceed to control the electronic means and stop tolerating their private use (you must eliminate the expectation of tolerance).
- If employees indicate that personal use of the tools is a more beneficial condition, you may argue that the law itself empowers you to take any monitoring and control measures you deem appropriate at any time, in accordance with your powers and the power of management.
Validity of the evidence to impose a sanction
Types of evidence to sanction
True facts
In the social jurisdiction, the law wants the judge or the court to judge the reality of the facts, not the “formal truth ” that can be deduced from the documents submitted to the proceedings.
Thus:
- Public documents prove the fact for which they were granted, as well as the date of the granting.
- Private documents will be assessed by the judge and will only have probative value if the judge recognises them (if he does not recognise them, they will not have probative value).
Precautions
In any case, it is advisable to take all possible precautions to avoid challenges to documents.
Therefore, it is better to submit originals rather than photocopies:
- It is better to submit originals rather than photocopies (although photocopies are admissible).
- If you present “digital” evidence(e-mails, screenshots from social networks, etc.), provide additional means of proof. For this purpose, you can provide the testimony of one of the interlocutors in an e-mail or WhatsApp conversation …..
- If you have accessed the employee’s computer or e-mail, provide a notarial act certifying the veracity of the content. In addition, include computer expert evidence setting out the process carried out and its suitability, necessity and proportionality.
In short, the better “secured ” the evidence is, the less doubts there will be about its veracity, so that the opposing party will not easily challenge it.
Conclusion
Ultimately, the better “secured” the evidence is, the less doubt there will be about its veracity, so that the opposing party will not easily challenge it.
