Benalmádena hotel waiter sacked for consuming beer while on duty
The detective hired by the company found that the worker drank alcohol during his working day, sometimes alone and sometimes in the company of other colleagues
A long-serving waiter at a prominent Costa del Sol hotel has had his dismissal upheld by the High Court of Justice of Andalusia (TSJA) after an undercover investigation revealed he was consuming alcohol during his shift.
The employee, who had worked at the Hotel Benalma Costa del Sol in Benalmádena for 13 years, was dismissed following a forensic audit of the hotel’s poolside bars. Management launched an internal investigation after detecting a "clear discrepancy" between the volume of beverages used and the revenue generated at a bar located away from the main complex.
To confirm their suspicions of theft and misconduct, the hotel firm hired a private detective to monitor the staff member's activity. The investigator’s report, cited in the judgment, detailed a systematic pattern of behavior where the waiter would "take advantage" of serving customers to pour himself surreptitious drinks.
These he would then drink in a store room. At other times he would pour himself a drink to 'toast' a colleague.
The worker filed a lawsuit against the hotel, seeking to have his dismissal declared null or unlawful. He argued that the behavior was "tolerated" by the company and questioned why he had been dismissed while other colleagues involved in similar incidents were only penalised with sanctions.
He further contended that, given his 13-year tenure, the company should have issued a formal warning before proceeding to a "terminal" disciplinary measure.
However, the TSJA dismissed the appeal, ruling that the dismissal was justified. The court found that the employee had been fully briefed on the company’s code of conduct upon his hiring, which explicitly prohibited the consumption of alcohol, drugs, or tobacco during working hours.
The judges noted that the location of the bars—situated by the swimming pools and "practically independent" of the main building—provided the employee with the opportunity to bypass standard management supervision.
The ruling confirmed that the "breach of contract" and the "misappropriation of company merchandise" were sufficient grounds for termination, regardless of the employee's length of service. The court also rejected the "gradualist theory" argument, noting that the severity of his actions justified immediate dismissal without the requirement for prior warnings.
