Instrumentalization of the whistleblower channel: dismissal justified despite receiving insults and threats of physical assault
Judgment of the High Court of Justice of Logroño, Labour Chamber, No. 106/2025, of 28 July, p. González González
In this ruling, the High Court of Justice of Logroño upholds the lower court’s decision to dismiss the claim for unfair dismissal brought by an employee who was dismissed for falsely reporting ─according to the facts proven in court─ another colleague for workplace harassment. The facts were reported through a formal internal communication, i.e., by means of a registered letter sent to the company.
Along with the internal communication, the dismissed worker (informant) provided a recording of about twenty minutes, obtained with his mobile phone recorder a few days before sending the registered letter. In the audio, the accused colleague can be clearly heard hurling multiple insults (“moron”, “brat”, “idiot”) at the whistleblower and threatening to physically assault him (“I’m going to smash your face in”).
Upon receipt of the registered letter, the company activated its harassment protocol, setting up an internal investigation team composed of the Director of Human Resources and the Chairman of the Works Council.
After interviewing the supervisor of the two workers, the Production Manager, the informant and the accused, the investigation committee concluded that “there is no harassment in the actions of the accused worker, given that the evidence shows that, although there is a conflict, this is normally caused by the actions of the complainant, who was only seeking a change of shift. The use of the harassment protocol tool is considered excessive, inappropriate, and intended to cause harm to the accused. The recording may have been manipulated and provoked by the complainant’s attitude, as the insults begin suddenly and without rhyme or reason, giving the impression that they were provoked by the fact that the vacuum cleaner was turned off, which the complainant knew would anger his colleague. He claims that the noise of the vacuum cleaner bothers him, but it has been verified that the noise is not that loud, even after asking other colleagues from the same section who work in the same location”.
On the same day that the reporting worker received the conclusions of the report, he began a process of temporary incapacitation due to common illness and a diagnosis of generalised anxiety disorder. He was on sick leave for three months.
In the meantime, the worker filed a claim for protection of fundamental rights. A few days later, the company notified him of his disciplinary dismissal, with the worker still on temporary sick leave.
The dismissal letter accepted and reproduced the conclusions of the internal investigation committee, classifying the (alleged) false complaint by a colleague with the sole purpose of obtaining a change of shift as a very serious offence, as defined in Article 65 of the XX Chemical Industry Agreement, applicable to the case. It was also considered a serious breach of contractual good faith, according to Article 54.2 of the Workers’ Statute.
The disciplinary proceedings were notified to the Works Council and to the UGT union representative, as the reporting employee was a member of this union. Neither the Works Council nor the union representative made any representations.
After the oral hearing, the presiding judge of the Labour Court considered the facts contained in the dismissal letter to be proven. Namely, that the reporting worker had provoked his colleague by turning off a vacuum system, with the sole purpose of provoking insults and threats, recording them and thus achieving the desired shift change. Although the existence of a previous conflictive relationship between the two workers was undisputed, the reporting worker was criticised for not having proven any other specific act of workplace harassment apart from that which was the subject of the audio recording. Consequently, the judge dismissed the claim for unfair dismissal against the company.
The High Court of Justice of Logroño upholds the lower court’s ruling. It dismisses the error in the assessment of the evidence and fully accepts the account of the proven facts. As for the legal basis of the ruling, its confirmation involves rejecting the application of the guarantee of indemnity to the specific case, on the one hand, and considering the gradualist theory inapplicable to sanctions, on the other.
The guarantee of indemnity consists of prohibiting retaliatory measures by the employer against workers who have exercised their right to effective judicial protection by bringing legal action against the company or taking steps to prepare such action. With a restrictive interpretation of the scope of the guarantee, the High Court of Justice of Logroño rejected its application to the specific case on the grounds that the reporting worker had not brought or prepared legal action against the company. This was despite the fact that in the registered letter sent, he had announced that he would take legal action if the company did not take appropriate measures. Furthermore, as stated above, after receiving the conclusions of the investigation committee’s report, the worker filed a claim for the protection of fundamental rights.
For its part, according to the gradualist theory, “the assessment of dismissal must be approached in a gradualist manner, seeking the necessary proportionality between the infringement and the sanction and applying an individualised criterion that assesses the peculiarities of each specific case” (Supreme Court Ruling of 27 January 2004, appeal 2233/2003). According to the High Court of Justice of Logroño, this theory refers to the determination of the seriousness of the infringements, but not to the severity of the penalties. Once the seriousness of an infringement has been determined (in accordance with the gradualist theory), the company is free to impose the previously established penalty.
In this specific case, both the lower court judge and the High Court of Justice of Logroño considered that the conduct of the dismissed worker, consisting of falsely accusing a colleague of harassment, was a very serious offence, punishable by dismissal.
However, it should be noted that, according to the facts proven in court, the dismissed worker never requested any disciplinary action against his colleague. In his communication, the informant asked the company to take organisational measures to avoid working alongside the reported worker: “On 29 September 2023 (…) I approached both my immediate superior, Mr Arturo, and the Production Manager, Mr Romualdo, to explain what was happening and ask them to intervene to put an end to this harassment (…). Since then, I have been waiting to see if the company would take any measures to stop this harassment. However, I am not aware that you have done anything to date, given that Mr Primitivo [the accused employee] continues to act in the manner I have just described and the Company has not assigned us to work separately or, at least, prevented us from being alone during the afternoon shift. For this reason, I feel obliged to send you this letter so that you do not continue to ignore what is happening in the company and seek a solution that will put a definitive end to this harassment”.
The ruling in question is not final. An appeal may be lodged against the decision. It will be necessary to pay close attention to the ruling of the Fourth Chamber, as it is surprising that in the case in question, the most serious labour sanction, dismissal, was considered appropriate for having internally reported a colleague who was clearly heard on an audio recording uttering insults and threats of physical aggression against the dismissed worker.