TSJ Andalusia, Room of the Social thing, Sentences 22 March 2018
Since the facts have happened outside working environment, and although the author has been condemned penal by a crime of coercions, the businessman does not have to be able of direction in these assumptions.
Even being certain that the worker harassed to his superior, so that the sexual harassment is a conduct that justifies the disciplinary dismissal must take place in the context of the labor relation, because if it takes place outside the place of work and without relation with the same, the businessman lacks legitimation to use his disciplinary authority since this one only one and exclusively derives from the work contract and intends to protect its specific interests as employer.
The worker, young man of warehouse, approached to the daughter of the owners of the company (he twins of the legal representative of the same and Director of the Commercial Department) in the public thoroughfare, first thing in the morning and after leaving this one at school to his son. He took hold himself to the window of the vehicle in which it was, of little decent form, saying to him that gorgeous you are, see you with me, you do not go away to which she answered that she left it peacefully, request to which the sanctioned one my goodness phelp neglectful attention continuing stingy to the window to the vehicle, preventing its circulation and declaring as you are, see with me, dropping you a paper with its phone number. The affected one before the violence of the situation, forced its vehicle reverse to be able to escape of the place. The facts brought about a strong crisis to him of anxiety that has needed medical and pharmacological treatment.
It is not possible to be denied that it is an unacceptable behavior, but is committed without temporary relation or space with the labor relation and it cannot affirm that the abuse took place on the occasion of the work or with advantage of the labor benefit.
It is the ajenidad to the labor scope what prevents to sanction the conduct according to the collective Agreement that is from application, because this one demands that the infractions are constituent of a guilty contractual breach of the worker.
Insisting on the ajeneidad of the conduct to the labor relation, the sentence emphasizes that the businessman cannot in these cases of having his power of direction; it reasons that this impossibility to sanction does not imply impunity of the aggressor, who already has been condemned by the penal route.
On a similar assumption the STSJ of Castilla-La Mancha was pronounced indicating that the sanction by sexual harassment tries to protect the hierarchic-labor discipline, the coexistence, the harmony and the mutual respect in which the personal relations between the members of the company must be developed, and for this reason, the verbal or physical offenses so that they constitute a punishable conduct with the dismissal must be related to the work contract, to bring necessarily its cause in the labor relation, and not in aspects particular or other people's to the same, reason why if they arise out of work and by causes other people's to the same, does not exist foundation sufficient to confirm the dismissal.
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