soyeb24
Doczy: 09 Mar 2024
Posty: 1
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 Wysany: Sob Mar 09, 2024 05:59 Temat postu: The conversations were not strictly private |
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The lower court ruling argued that, having examined the fundamental right to the secrecy of communications, in light of the facts, it considers that “since the appellant company has not established the criteria for the use of digital devices to carry out the control of the activity , the data protection law has been violated, and the content of the contractual clause, which is transcribed in the proven facts and its right to control and supervise the activity of the plaintiff through telematic and computer means, is insufficient. , to carry out the control of the computer tools made available to the plaintiff, which has determined the imputation that is made in the dismissal letter, therefore concluding that the company has had knowledge of the improper use of the computer tools , on the part of the plaintiff, violating her right to secrecy of communications.”
The defendant appealed the lower court ruling and the Superior Court of Justice of Madrid has partially Fax Lists upheld the company's appeal, revoking the appealed ruling and instead declaring the dismissal as unfair instead of null, as the company had not been violated. the fundamental right to privacy and secrecy of the worker's communications.
The Court has reasoned that the control carried out by the company refers to the work tools made available to the plaintiff and within the communications made with clients by the plaintiff . Although the ruling recognizes that it is true that there has been no obligatory communication to the worker of the specific rules of use, nor an express total or partial prohibition of the private use of work instruments, with special reference to WhatsApp and email conversations. electronic, it is also true that in these specific cases, and regarding their inclusion in the right to privacy, the Jurisprudential Doctrine has also ruled, which in this regard has said that:
"...even though the attribution of individualized or exclusive spaces - such as the assignment of personal email accounts to workers - may have relevance to the company's supervisory action, it must be taken into account that "the degrees of intensity or rigidity with that business surveillance and control measures must be assessed are variable depending on the configuration of the conditions of disposition and use of computer tools and the instructions that may have been given by the businessman for this purpose" (STC 241/ 2012 ).
In this case, the TSJ of Madrid has understood that the company covered the reasonable expectation of privacy , and although without establishing criteria for the use of computer devices to control the plaintiff's activity, what the company did was review WhatsApp conversations between the plaintiff and clients or intermediaries, conversations that were not strictly private. Therefore, “the dismissal of the plaintiff can in no way be considered null and void due to injury to the right to privacy and secrecy of communications.”
The Chamber considers that the classification of null dismissal is not appropriate since it has not been proven that the termination decision agreed upon by the defendant company, considered in itself, intended to violate the fundamental rights or public liberties of the worker, nor that the motive of the The employer, when agreeing to the dismissal, responded to a cause that violated these fundamental rights, which would legally entail the annulment of the dismissal.
However, the TSJ shares what was stated in the instance regarding the lack of accreditation of the facts attributed to the plaintiff. Therefore, since the alleged cause has not been proven, the dismissal must be declared unfair in application of the provisions of articles 55.4 of the Workers' Statute and art. 108 of the Law Regulating Social Jurisdiction. |
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