Fired for making personal calls on the company phone

Is making personal phone calls on the company phone a fair reason for dismissal? A ruling published recently appears to confirm that it is.

A recent ruling by the Extremadura High Court of Justice (TSJ) has confirmed the cessation of an office employee who constantly called friends and family on her company phone to talk about personal matters.

The woman, who was a workers’ representative and was pregnant, challenged the dismissal on the grounds that it was discriminatory and was also an attack on her privacy. The judgment, on the other hand, finds that the disciplinary measure was fully justified, taking into account that the company’s code of conduct did not allow the use of internal lines for personal purposes.

As reflected injudgement, the worker had been behaving in a strange way for months. In fact, at the end of 2019 her superiors saw her several times talking on the phone “very quietly” so that the rest of the office members would not hear what she was saying, according to the evidence submitted to the Court. On suspicion that irregularities might be occurring, the human resources department decided to undertake a detailed investigation into the telephone conversations.

The inquiries confirmed that the employee, who served as an administrative assistant, spent much of her working day talking with another colleague from the same department on issues that had little or nothing to do with work. Specifically, according to the human resources report, a total of 11 hours and 47 minutes were present during September; and 14 hours and 45 minutes in October, an average of between 7 and 8 calls daily.

After learning about what had happened, the management of the office fired the two employees, in a disciplinary proceeding without severance pay.

The letter with the notification sent on 21 November based the sanction on the fact that “the company prohibited from its workers from using professional means for private purposes and has warned them about the possibility of monitoring its work in order to control the effective virtuality of its design”. In other words, both workers had violated their commitment to use the telephone for strictly labour matters and the employer decided to apply the most severe punishment provided for in the Workers’ Statute: immediate expulsion.

Right to privacy?

In her appeal to the social court, the worker denounced the unconstitutionality of the means used by the company to supervise its activity. She also claimed that the real purpose of the management was to terminate its contract with a pregnant woman and a trade unionist. Hence, she requested the declaration of nullity of the cessation and the immediate return to her place of work. The argument failed to convince the district court, but the worker appealed the decision.

However, the arguments of the appellant did not convince the TSJ of Extremadura and it indicated that it failed to see “any indication” of illegality.

The judges refer to the settled jurisprudence of the Supreme Court (TS) which gives companies the right to monitor the use of the devices they make available to them, provided that there is a protocol of conduct known to the entire staff and the means used to carry out such control are proportional and necessary. In that regard, they have an effect on the fact that the company has adequately proved the infringement committed and that there is no indication of any kind of discrimination.

In short, the TSJ concludes that “the applicant’s dismissal was not motivated either by her maternity or by her status as a workers’ representative, but by the contractual breaches attributed to her in the letter of dismissal”. The ruling is not firm and can now be appealed to the national Supreme through a recourse for the unification of doctrine, according to local news reports.

Maria Luisa

María Luisa Cervantes is a chartered accountant who graduated from the University of Granada in 2002. Founder of Cervantes Alarcón Consulting, she is an experienced accountant and financial advisor who is a member of the Almería guild of economists. With more than 15 years of experience in business administration and international trade, she is also a subject matter expert in the UK - Spanish bilateral agreements which cover the rights of expats to live, work and retire in Spain.