Court rejects appeal by Malaga hotel worker who was fired after pouring his urine over kitchen utensils

The High Court of Justice of Andalucía (TSJA) ruled that neither the employer's failure to give the worker a prior hearing nor his history of mental health treatment invalidated the dismissal, upholding an earlier judgment by a Malaga labour court.

The incident happened at 9.15am in the kitchen of an aparthotel in Malaga. The head chef became concerned when the noise from the 'plonge', the area where large pots, pans and kitchen equipment are washed, suddenly stopped. He found the employee standing with his back to the room, facing a wall.

When challenged, the worker turned around, adjusting his clothing while holding an old mayonnaise container repurposed to hold water and cleaning products. According to the judgment, the employee said he had been urinating because he was diabetic and "couldn't hold it any longer".

In the presence of another colleague, he then emptied the urine into a sink containing kitchen utensils awaiting a final rinse before being placed in an industrial dishwasher. The court found that the urine had landed on the utensils, a key factor in assessing the seriousness of the incident.

The hotel dismissed the employee for what it described as a "very serious" breach of hygiene and safety rules. It also noted that he had received two disciplinary sanctions in the preceding months, including suspensions for confrontations with managers and colleagues, threats and altercations during a medical examination.

The worker argued that the dismissal was unfair because he should have been given a prior hearing, his continuous service should have been calculated from 1992 and his psychiatric history meant he lacked the level of responsibility required for disciplinary dismissal.

The judges rejected all three arguments. They found that lengthy gaps between contracts, some lasting more than a year, broke the continuity of his employment. They also ruled that the requirement for a prior hearing, established by the Supreme Court in November 2024, did not apply because the dismissal took place before that judgment. The employer had, however, informed the trade union representative before taking disciplinary action.

The court also dismissed the argument that the worker's mental health removed his responsibility for his actions. Although he had previously received treatment for a personality disorder, the medical evidence was almost two and a half years old and described him as "conscious and fully oriented", with no psychotic symptoms and a stable mood. No recent expert evidence has shown that he lacked the capacity to understand his actions.

The judges attached particular significance to the employee's conduct after being challenged by the head chef. They said his decision to pour the urine over the utensils after being confronted "can only be described as defiant" and demonstrated "a clear degree of intent", making it incompatible with any claim that he was incapable of understanding what he was doing.

The court also refused to replace the dismissal with a lesser sanction under the so-called graduality principle, which allows penalties to be reduced in some cases. It ruled that the misconduct directly affected food safety and destroyed the trust essential in a hotel business.

The TSJA therefore dismissed the appeal and confirmed that the disciplinary dismissal was lawful. The ruling is not final and may still be appealed to the Supreme Court.