The Social Chamber of the Supreme Court has handed down a sentence in which it unifies doctrine and establishes that drivers who work in passenger transport by road who drive under the influence of drugs, hallucinogenic substances or narcotics, if it is proven, analytically, is grounds for dismissal from employment, without any other factors having to be involved.
The court considers that this is conduct constituting grounds for disciplinary dismissal subsumable in chapter V, sections c), g) and k) of the Arbitration Award, as well as article 54.2.d) of the Workers’ Statute.
The Chamber applies this doctrine to the case examined and declares the dismissal of a bus driver who tested positive for cocaine use in a routine control by the Guardia Civil while traveling the Cuenca-Madrid route in 2020 admissible. After the immobilisation 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 compensation, to whom the company returned the amount of the tickets. The driver was fired.
A court in Cuenca considered his dismissal admissible, considering that the facts were very serious, since not only had a labour duty been breached, but also an administrative offence had been committed in road matters. He also understood that this conduct endangered the lives of travellers 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, they agreed with the driver and declared his dismissal inadmissible, condemning the company to choose between the reinstatement of the worker or the payment of compensation of 84,529 euro.
The company filed an appeal before the Supreme Court, the last choice in the legal battle, which ruled that it does consider the dismissal admissible.
Violation of danger, not of result
The Chamber interprets the Arbitration Award issued in 2000, assumed by the collective agreement, which describes punishable behaviours. 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 previous detection of road anomalies, nor protest of transport users, nor chronological proximity of the ingestion, nor reiteration of the behaviour, etc.”
The ruling explains that it is an “infraction of danger, not of result” and that the sectoral norm makes it clear that “exceeding the blood alcohol level, in itself, is what constitutes a breach considered very serious. Not its exteriorisation or subjective perception by third parties”.
For the Chamber, 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 breathalyser is configured, without a doubt, as a punishable situation, being affected for narcotic substances integrates the sanctioning type”.
In his judgment, a presentation by magistrate Antonio Sempere, he stated 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 literality of the precept does not require that driving under the influence of certain substances be accompanied by other data; the comparison with the automatism of breathalyser plays in this sense; the preventive purpose does so in the same sense”.
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 those who take charge of a self-propelled vehicle and without robotic driving must be, logically and by way of example, different from those of those who carry out a sedentary activity and without risk to third parties.”
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.”
It adds that it must also be assessed that the driver’s conduct “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, in addition, it is verified with the customer complaint for the delay.
Likewise, it affirms that “the affectation and link of the imputed conduct with the employment relationship is clear, since it affects the reputation of the employer, ultimately redounding to his detriment. Not because of the refund of the amount of the tickets but, especially, due to the discredit that the news about what happened entails and the eventual distrust that may arise from it”.
Trust of travellers in drivers
The sentence 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 are also under the right conditions.”
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.
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