It establishes that drivers are subject “to severe demands to ensure” that they are “in adequate conditions”
MADRID, 10 Mar. (EUROPA PRESS) –
The Supreme Court has established that driving under the influence of drugs is a constitutive cause for disciplinary dismissal for carriers without the need for strange maneuvers or a circulatory accident, and it is only necessary that the existence of narcotic drugs be analytically proven.
In a ruling, collected by Europa Press, the Social Chamber unifies doctrine and considers that drug use is conduct constituting a cause for dismissal subsumable both in the arbitration award and in the Workers’ Statute.
The magistrates apply this doctrine to the case analyzed and declare the dismissal of a bus driver who tested positive for cocaine use in a routine control by the Civil Guard while traveling the Cuenca-Madrid route in 2020 admissible.
After the immobilization of the vehicle by the agents, two drivers had to travel to the area to finish the service. These events caused delays in the journey for which the 39 passengers who were on the bus claimed, to whom the company returned the amount of the tickets. The driver, with a seniority since 2001, was fired.
A court in Cuenca considered his dismissal admissible, considering that the facts were very serious, since not only had a labor duty been breached, but also an administrative offense had been committed in road matters. He also understood that this conduct endangered the lives of travelers and those who circulated on public roads, in addition to damaging the company’s image.
The Superior Court of Justice of Castilla la Mancha, for its part, ruled that since it had not been proven that driving was influenced by the consumption of toxic substances, regardless of the moral reproach that could be made, that conduct was not enough to justify the dismissal.
With these arguments, he agreed with the driver and declared his dismissal unfair, condemning the company to choose between the reinstatement of the worker or the payment of compensation of 84,529 euros. The company, for its part, filed an appeal before the Supreme Court, which does consider the dismissal admissible.
Now, the high court interprets the arbitration award issued in 2000, assumed by the collective agreement, which describes punishable behaviors. Specifically, it regulates two situations –exceeding a blood alcohol level and driving under the influence of drugs–, such as the Road Safety regulations, which “do not require additional requirements to the fact in question: neither police presence, nor prior detection of road anomalies , nor protest from transport users, nor chronological proximity of ingestion, nor reiteration of behavior, etc.”
The Chamber explains that it is an “infraction of danger, not of result” and that in the sectoral norm it is clear that “exceeding the blood alcohol level, in itself, is what constitutes the breach considered as very serious”. “Not its exteriorization or subjective perception by third parties,” he adds.
For the magistrates, driving under the influence of drugs, therefore, does not require that there be evidence to prove this irregular conduct, “in the same way that externally unverified breathalyzer is configured, without a doubt, as a punishable situation, being affected for narcotic substances integrates the sanctioning type”.
The ruling, presented by magistrate Antonio Sempere, states that the purpose of the provision seems clear: to avoid risks and guarantee road safety. Therefore, “the objective data of giving a positive drug test assumes that at the time of driving the worker had that substance in his body with the effects that it could display.”
In conclusion, the sentence establishes that the literality of the precept does not require that driving under the influence of certain substances be accompanied by other data. “The equating with the automatism of breathalyzer plays in this sense; the preventive purpose does it in the same sense”, he adds.
The Chamber indicates that this is how it is understood that in the road transport sector the presence of alcoholic substances or narcotics is addressed with a different standard and approach than that of other areas.
“The contractual obligations of someone who is in charge of a self-propelled vehicle and without robotic driving must be, logically and by way of example, different from those of someone who carries out a sedentary activity and without risk to third parties,” the ruling states.
For the court, both physical integrity and the right to life are compromised by the mere fact of using public land transport, therefore, “their best protection is consistent with the consideration that whoever drives the vehicle is subject to severe demands to get it in proper condition.”
The Chamber adds that it must also be assessed that the conduct of the driver “had a negative impact on the regularity of the service”, which is evident, since they had to wait for the drivers to take charge of the bus to arrive and, furthermore, it is verified with the claim of customers for the delay.
Likewise, it affirms that “it is clear the affectation and link of the imputed conduct with the employment relationship, since it affects the reputation of the employer himself, ultimately redounding to his detriment.” “Not because of the refund of the amount of the tickets but, especially, because of the discredit that the news about what happened entails and the possible mistrust that may arise from it,” he emphasizes.
The ruling also underlines the relevance that public transport has in an advanced society and indicates that the expectations of those who use it point to the “necessary confidence” that the people who drive the vehicles “not only have the necessary knowledge, but also They are in the right condition.”
He considers that the profession of public transport driver who underwent a routine check for alcohol and drug intake, with a positive result for the consumption of the specified substance, as in the case examined, requires special care when it comes to comply with road safety requirements.
The Chamber clarifies that, beyond the effective impact on their capacities at the time, prior consumption (not denied, the remains of it accredited) does not constitute conduct, as private, intrinsically punishable in the workplace. But he understands that the situation is different when he agrees to carry out his activity as a carrier without prior verification that the substances ingested are no longer present in his body.
Likewise, it points out that the fact that the discovery is made in a routine control does not classify the conduct, but rather obeys the desirable and habitual vigilance that the competent Security Forces must carry out.
