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She worked in a shopping centre in Spain's Andalucía region, but one day when she left the store after finishing her day, the alarm was activated. It attracted the attention of a security guard who, on searching her bag, found four items that she had not paid for. Specifically, they were two protein bars worth 1.37 euros each; a dog snack costing 1.99 euros; and a dog shampoo, costing 3.99 euros. After the incident, the company viewed CCTV footage and found that the employee took the products. The company dismissed her on the grounds that the facts described were "unacceptably serious" and could not be justified in any way: "They constitute a lack of loyalty and fidelity regardless of the damage caused and constitute very serious misconduct".
However, the social division of the Supreme Court has declared the dismissal null and void after denying the validity of the evidence. According to the ruling, the search of a worker's bag without the presence of a legal representative (staff representative) or, in its absence, another employee, was unlawful. The requirement that a workers' representative or another employee be present at the search is not related to the protection of the worker's privacy; it is a guarantee of the objectivity and effectiveness of the evidence. In the absence of such a requirement, the evidence is invalid.
The top court pointed out that the workers' statute, in Article 18, allows searches under the following conditions: when necessary for the protection of the company's assets and those of the other workers at the centre, within the workplace and during working hours, respecting the dignity and privacy of the worker and in the presence of a legal representative or, in the absence of the latter, of another employee "whenever possible".
Therefore, the ineffectiveness of the bag search carried out in violation of the law means that the disciplinary dismissal was unfair. However, in this case, as the worker had reduced working hours to care for a minor child, the "automatic nullity" applies.
In the first instance, a court in Huelva dismissed the worker's claim, declaring that the sacking should be classified as fair dismissal. The employee appealed against the judgement in an appeal before the top court in Andalucía (TSJA), which found in her favour, arguing that the search of the bag was carried out without the presence of another worker or a workers' representative, and therefore lacked probative value. In addition, it ordered the company to immediately reinstate the worker, with payment of the lost wages.
This decision is now confirmed by the Supreme Court, which also ordered the company to pay 1,500 euros in costs.
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