Comment
I. The issue at hand.
As previously stated, the underlying issue at hand is whether the employer’s decision to dismiss for cause an employee who, while on status medical leave leave due to an injury to one of his wrists, actively participated in several soccer matches, is in accordance with the law. This is because the internship sporting activity in question may constitute a serious and culpable breach of contractual good faith under Article 54.2(d) of the Workers’ Statute (ET). Not surprisingly, as the judgment in question itself points out, engaging in sports activities incompatible with the status of leave medical condition causes harm both to the public interests of Social Security and to the private interests of the business and even of the work teammates.
II. Temporary vs. “ internship ” incapacity from a sporting activity.
a. Starting point.
For the development of a sporting activity by a person who is status on temporary disability to be punishable by disciplinary dismissal for breach of contractual good faith [Art. 54.2(d) of the Workers’ Statute (ET)] it is necessary that the sporting activity in question interfere with recovery, prolong the duration of the illness (injury) causing the temporary disability, or demonstrate that the employee has regained the aptitude to perform their work space, thereby constituting malfeasance.
Under these circumstances, the internship participation in a sporting activity during the status of a leave medical leave would not be considered improper if it can be proven that the staff physician recommended it to the employee (for example, to build muscle).
In this regard, it may happen that, in the case of certain medical conditions, the staff treating physician recommends—or sees no contraindication to—the employee performing certain physical exercises. Conversely, participating in sports while on medical leave leave and against the recommendations of the staff treating physician could indeed be grounds for disciplinary action under the business:
“ internship ng in sports activities while on medical leave is not grounds for disciplinary action business if it is compatible with the worker’s medical condition. In this regard, the prevailing judicial doctrine holds that practicing sports—and even participating in sports competitions—while on leave due to a psychological subject condition (anxiety, depression, etc.) is not grounds for disciplinary action, especially if it is proven to improve the worker’s health. However, there have been instances where disciplinary dismissal has been upheld for an employee who, while on leave due to anxiety or depression, engages in sports activities incompatible with that condition. On the other hand, there are cases in which physical exercise is part of the medical treatment prescribed for the employee’s recovery. In this regard, a growing body of scientific programs of study supports strength training as a complementary treatment for certain cancer patients, always under medical supervision. According to final, “the primary criterion to consider when assessing whether participating in sports while on medical leave is grounds for disciplinary action is the subject of the injury that led to the worker’s temporary disability and its compatibility or incompatibility with physical exercise in general and sports activities in particular.”
b. Possible situations to consider.
To determine whether sports- internship s are compatible with the condition affecting a person on temporary disability leave ( status ), it is of the utmost importance to consider the prescribed medical treatment and the guidelines and recommendations of the attending physician ( staff ), allowing us to distinguish, at a minimum, the following four situations:
i. Primary status. Sports internship is part of the medical treatment prescribed for the worker’s (patient’s) recovery. Along with surgical and/or pharmacological treatment, physical exercise and sports—at a more or less moderate level—may form part of the treatment prescribed for the patient’s recovery. In these cases, all indications suggest that sports- internship s during medical leave , under the terms established by the staff treating physician, will not be subject to disciplinary action by the business.
ii. Second status. Sports internship , although not part of the prescribed treatment, is recommended by the staff attending physician or authorized by the physician at the request of the injured worker. In these cases, all indications are that sports internship during medical leave , under the recommended or authorized terms, will not be subject to disciplinary action by the business.
iii.- Third status. Although sports internship is not part of the prescribed treatment and has not been expressly recommended or authorized by the staff treating physician, it is compatible with the injury because it neither aggravates it nor delays recovery. In these cases, everything indicates that sports internship during the leave medical leave will be subject to disciplinary action only if the business proves that it aggravates the injury or delays recovery.
iv. Fourth status. The medical internship has advised against sports staff or has even expressly prohibited it. In these cases, all indications suggest that engaging in sports internship during the medical leave is punishable under the business.
III. Conclusions.
While acknowledging the extraordinary complexity of legal reasoning that may arise from the wide variety of possible scenarios at play in the case of * internship*, the following conclusions can be drawn from the judgment under discussion:
First: Engaging in sports - internship , provided it is leave , is not subject to disciplinary action if the physical exertion it requires is less than that required by the employee’s work.
Second: Conversely, sports-related internship is subject to sanctions if it is proven to reach levels or demands greater than those encountered in the employee’s regular work activity; that is, if the physical and ergonomic requirements of the work space are (much) less demanding than those of the athletic events in which the employee participated while on leave. To assess the intensity and physical demands of the professional activity, the INSS’s “profesiograma” and “ guide ” ( evaluation ) are typically used as a guide.
Third: According to final, the frequency and regularity with which a sport is practiced is a criterion to be taken into account. For example, a competition lasting a single day is not the same as one lasting several days; and if it lasts several days, it is important to distinguish whether or not those days are consecutive—that is, whether or not there is workshop/s of rest to recover. Furthermore, even when the competition takes place on a single day, it is important to keep in mind that it requires prior preparation and training of varying intensity and duration.
IV. — Resolution of the issue raised.
Applying the aforementioned legal principle to the specific case at hand, the solution adopted in the judicial decision under discussion ultimately confirms the validity of the disciplinary dismissal, which was carried out as follows:
“It has been established that, while on leave sick leave due to a fracture of the tubercle in the distal third of the wrist’s scaphoid bone, the plaintiff participated in several soccer matches (…) and due to the subject of the condition diagnosed as internship in that sport—which requires contact with opponents—various situations arose that necessitated the use of the hands and, indirectly, the wrists: falls to the ground, challenges for aerial balls, collisions with opponents, impacts with the railings marking the boundaries of the playing field, as well as impacts caused by the ball. All these traumatic and aggressive circumstances take a toll on the joints, causing existing conditions to worsen; it is ill-advised to engage in competitive sports— contact —while suffering from a scaphoid fracture in the wrist, since, far from keeping it at rest, the wrist is subjected to adverse conditions; and it is important to allow the limb to recover completely before subjecting it to intense sports activities; from a medical standpoint, it is not recommended to engage in high-impact activities, whether sports-related or not.”
