Intentionally faking work performance may constitute a particularly gross breach of employee’s duties

According to the Supreme Court, intentionally faking work performance may constitute a particularly gross breach of employee’s duties.

The decision by the Supreme Court of 20 May 2022 that is at the heart of this article (21 Cdo 424/2021) addresses, among other things, the issue of employees deliberately faking work performance for the employer, and arrives at interesting conclusions especially for employers who seek clarification how severe a breach of work obligations by the employee must be in order to justify the (possibly summary) dismissal of the employee on grounds of a violation of statutory duties related to their work.

The case brought before the Supreme Court concerned the assessment (in terms of its intensity) of a breach of employee’s duties with respect to the ground for termination laid out in Sec. 52 (g) of the Labor Code. In its decision, the court revisited the individual obligations which arise for an employer from the law and are binding for all of them. (Even so, we need to note at this point that the case was somewhat specific, in that the employee had been a public official employed with a territorial self-governing unit; as such, his conduct, which was eventually found to qualify as a breach of work-related duties, was the subject matter of a procedure on a misdemeanor.)

In the case at hand, the employee had faked the attendance record, declaring his presence in the workplace even though he had demonstrably left work 16 minutes earlier. The employer considered this a breach of employee’s duties in the form of an assault on its assets, given that the employee drew a salary during those sixteen minutes for work that had actually never been performed, and in this manner intentionally and unlawfully reduced the value of the employer’s property.

The Supreme Court stressed that the Labor Code requires all employees to use their working hours and the means of production entrusted to them for the performance of work assignments, and to discharge their work tasks to the best of their abilities and within the set performance deadlines. Also, employees must observe the laws and legal regulations which are pertinent to their work performance, and must properly manage the employer’s assets in their care. They must defend the employer’s property and protect it from damage, loss, destruction, and abuse. Also, employees must not act contrary to the legitimate interests of the employer.

The court went on to explain that these obligations are among the basic duties of employees, and form the moral imperative imposed on all of them. The Supreme Court believes that employees are also subject to the general duty of prevention with respect to the employer’s property and the employer’s legitimate interests.

Against this backdrop, the Supreme Court ruled that an assault on the employer’s asset was in and by itself an act of such enormity as to regularly allow for the conclusion that the employee committed a particularly gross breach of the employee’s duties under the law applicable to their work. For the Supreme Court, the behavior of the employee in this case, consisting of the “deliberate faking of work performance” (by reporting work performance during times in which the employee actually ran their personal errands), belongs into this category of the most intensive breaches of duty.

In its judgment, the Supreme Court explained that the assault on employer’s assets (oblique though as it may have been, in the form of pretending to work when they didn’t) was a breach of statutory employee’s duties of such intensity as to qualify as an especially gross breach of duty. As such, it gives ground not only for regular notice of termination as per Sec. 52 (g) of the Labor Code, but also for summary dismissal as per Sec. 55 (b) of the Labor Code. The Supreme Court believes that it is a priori of no concern what particular assets may have been jeopardized or harmed, and in what scope, by the assault.

These conclusions by the Supreme Court are relevant insofar as intentionally running private errands on the clock appears to qualify, in the opinion of the court, as the most intense breach of employee’s duties under the Labor Code. It remains to be seen what route the decision-making practice of the courts will take in the wake of this decision, and whether the courts will routinely find that faking one’s work performance is an assault on employer’s assets of such intensity as to give grounds for summary dismissal.

Supreme Court judgment 21 Cdo 424/2021 of 20 May 2022

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