The Supreme Court, in a judgment dated March 23, 2026 (Case No. 49,746-2024, Fourth Chamber), upheld a motion for unification of jurisprudence and validated the dismissal for lack of probity of a worker who traveled to Argentina for recreational purposes while on sick leave with full home rest. The ruling resolves a divergence among courts of appeals and establishes an interpretive standard that will guide future rulings in similar cases: the misuse of sick leave can constitute the grounds for dismissal under Article 160 No. 1(a) of the Labor Code.
What happened
A worker obtained sick leave between January 19 and February 2, 2023, with full home rest prescribed. During that period, between January 21 and 29, 2023, the worker traveled to Argentina. The employer learned of the situation and terminated the employment on February 7, 2023, invoking lack of probity. That same day, the treating physician issued a report suggesting the worker engage in activities that would allow disconnection from daily routine — a document later invoked in the worker's defense.
The worker filed a wrongful dismissal claim. The argument: while on sick leave, the worker was not "in the performance of duties" and, therefore, the ground for dismissal was inapplicable.
The trial court rejected the wrongful dismissal claim and validated the ground invoked, granting the claim only for wage and vacation differences. The Santiago Court of Appeals reversed: it held that lack of probity is restricted to conduct during the actual performance of services and that what occurred during sick leave belonged to the worker's private sphere.
The Supreme Court upheld the employer's motion for unification of jurisprudence, voided the Court of Appeals' ruling, and reinstated the trial court judgment.
The court's reasoning was built on three pillars. First: the expression "in the performance of duties" in Article 160 No. 1(a) is not limited to acts physically performed at the workplace. It also encompasses conduct with a direct impact on performance and company organization. Second: sick leave suspends the obligation to render services but not the duties of good faith, loyalty, and fidelity inherent to the employment contract. Third: using a social security benefit for purposes unrelated to the prescribed rest demonstrates bad faith and can break the trust that sustains the employment relationship.
What this could mean for your company
If you manage teams and face situations where workers on sick leave engage in activities manifestly incompatible with prescribed rest, this ruling provides concrete jurisprudential support.
Before this judgment, there were divergent rulings among courts of appeals on whether this ground for dismissal applies in such situations. The Antofagasta Court of Appeals had validated disciplinary dismissals in cases of abusive use of sick leave, understanding that ethical contractual duties remain in force during the suspension. Other rulings required proof of a specific intent to defraud the employer to establish the ground. The Supreme Court now unifies the interpretation in favor of the broad reading of Article 160 No. 1(a).
But there is an operational nuance worth noting. The ruling does not establish an automatic rule. The Court requires that the conduct be of such magnitude that it breaks the relationship and prevents its normal continuation. Not any activity during sick leave constitutes lack of probity: it must be an activity objectively incompatible with the prescribed rest, with concrete evidence of bad faith and demonstrable impact on the company's proper functioning.
Another relevant aspect: in this case, the employer had evidence from the worker's own social media and immigration records. The strength of the evidence was determinative in sustaining the ground in court.
What you can do
- Document sick leave and rest prescriptions. Keep a copy of the leave certificate, the medical indication (full, partial, or home rest), and the dates. If you detect an incompatible activity, that documentation is your first line of support.
- Gather objective evidence before dismissing. Immigration records, social media posts, geotagged photographs, or other materials proving the activity was incompatible with the prescribed rest. The Supreme Court weighed concrete facts, not suspicions.
- Assess the proportionality of the measure. Before invoking lack of probity, weigh the severity of the conduct, the nature of the prescribed rest, and the impact on the organization. The ruling's standard requires that the conduct be sufficiently serious to break workplace trust.
If you face a situation of sick leave misuse and need to assess the viability of a disciplinary dismissal, schedule a consultation with Cubillos Lama
This content is for informational purposes only and does not constitute legal advice for any specific case.