Workers can be fired for making derogatory and mocking comments regarding their superiors in WhatsApp chats, as confirmed by a recent cassation issued by the Second Chamber of Transitory Constitutional and Social Law of the Supreme Court in file 24775-2019.
In the case in question, a worker, who was also a union leader, referred to the manager of Management and Human Development of his company as “pelao” and “pelón”, among other phrases, in a chat that he shared with other workers of the company, in which the person referred to was not found.
The company obtained access to the chat messages and proceeded to fire the worker, alleging that he did not show the due respect, deference, good treatment and courtesy that was expected of his employment relationship and that are reflected in article 25, paragraph f of the law of labor productivity and competitiveness.
positions
This led the affected worker to sue the company for fraudulent dismissal. In this regard, the Superior Court, in the second instance, agreed with the worker, indicating that no fault had been set up, since the events occurred in the context of a conversation between a union leader and his affiliate and not between the worker and employer.
However, the Supreme Court clarified that “nothing justifies offending a person because of their physical appearance or referring to them in a derogatory manner, so the serious fault is evident”, protecting the dismissal of the worker.
Privacy
According to César Puntriano, a partner at the Muñiz studio, in this case “it was a WhatsApp group made up of members of the company union.”
Puntriano adds that “the company accessed the information, surely, because one of the members of the chat made its content public. In this case, the employer did not intervene in a private conversation, but one of the participants informed him of what had happened.
It would be different if the company had, by its own means, accessed the private conversation of a worker.
The data
Vaccination. The right of workers is not violated by requiring their vaccination record, since although contagion in the workplace is not avoided through them, the risks of suffering from covid-19 are reduced, according to a recent resolution of the Labor Court.
In short
Ley. The labor productivity and competitiveness law sanctions with dismissal any lack of word that occurs “outside the [centro de trabajo] when the facts derive directly from the employment relationship. A chat with other workers would fit into this assumption.
