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The company was aware that while the worker was on medical leave it could not dismiss him without such a dismissal being regarded as illegal, "but they had already done so on previous occasions." However, this time it was different because the affected employee, who worked as a head waiter in a restaurant in Madrid, did not accept his dismissal and took his employer to court.
"Listen, I've called you up as I've been told to talk to you to see how we might reach an agreement, because it turns out that we're tied up with a lot of work, they need people working and that, well, it could be that your situation gets a bit delayed and so maybe we can come to an amicable arrangement."
As checked by SUR, this is a transcript of what was stated by the company spokesman trying to justify the employer's decision to dismiss the plaintiff: "When you are on sick leave, in theory you cannot be fired, but it has already been done with other people, that is to say, it's nothing new, so, as bad as it is, I've been told that when you recover and it's all done and dusted, they are counting on you to return to work but, for the moment, they need to hire more people, that they have already spent a lot of money and that they need hands on deck."
The restaurant worker, who was awaiting surgery for a benign cyst on his right foot, was scheduled to be off work for 36 days. But ten days after starting his sick leave, the company informed him of his dismissal, justifying it on "objective grounds".
Dissatisfied with the decision, he went to court. The Social Court No. 7 of Madrid agreed with him and declared the dismissal unjustified. It also ordered the company to reinstate him or compensate him with 564.58 euros of lost pay. However, the worker appealed to the Madrid High Court of Justice requesting the dismissal be made null and void as well as compensation for violation of fundamental rights.
According to the resolution, the worker was also threatened by his "boss of bosses" at the restaurant via whatsapp after receiving notification of the lawsuit: "You know that my partner is a lawyer and I have no legal costs. You still have time to fix this and I can recommend you in your future jobs, otherwise, rest assured that, wherever you are, we will ensure we tell your bosses what kind of worker you are. It's simple, choose the easy way and you'll get me. Choose the hard way and you will suffer us."
Finally, the TSJM (high court in Madrid) ruled that the dismissal of the head waiter while he was on sick leave due to temporary disability is null and void and ordered the company to pay damages of 4,000 euros as well as giving him his job back.
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