Andalusian High Court upholds dismissal of worker who used sick leave to perform acitivities similar to his job

The High Court of Justice of Andalucía (TSJA) has upheld the disciplinary dismissal of the gardener of a Costa del Sol hotel who was on sick leave for anxiety and who was nevertheless caught operating heavy machinery during that same period. The ruling consolidates the principle that temporary disability does not cover activities incompatible with the recovery process.

The case began in 2024, when the worker, who was also a union representative, went on sick leave for anxiety. The company commissioned an investigation that ended up revealing that the employee operated a mini-excavator and performed tasks typical of his profession during said leave.

The images and surveillance the private investigator conducted detail the repairs and significant work on various properties that the worker carried out. The court determined that these actions could not be considered occasional or everyday activities, but rather constituted employment, possibly even with financial compensation.

The TSJA has firmly ruled that the worker's behaviour constitutes a "serious breach of contractual good faith" - one of the grounds for disciplinary dismissal under the workers' statute. Furthermore, it emphasises that operating heavy machinery requires a level of physical and mental fitness incompatible with the alleged anxiety.

The TSJA has dismissed the worker's appeal and fully upheld the ruling of the Malaga social court. In doing so, the court confirms that the activities the worker carried out during the leave not only failed to promote recovery but also demonstrated a work capacity that contradicted the temporary disability status.

Another key point of the ruling is the use of private investigators. The employee alleged a violation of his privacy, but the court rejected this argument. The private detective obtained proof in public spaces, which means that there was no unlawful intrusion.

Lawyer Óscar Gómez, who represented the company, described the case as "particularly striking" because it involved an employee with union representation. In his opinion, the conduct reflects "an abuse of the system" and a lack of responsibility both towards the company and the social security system.

The ruling confirms that being on medical leave is not compatible with activities that contradict the diagnosis or show that the worker can perform similar or even more demanding tasks than their usual job.

With this ruling, the TSJA sends a clear message: temporary disability is not compatible with parallel professional activity and its misuse can result in fully justified disciplinary dismissal.