The contract creates a duty of care of the worker, and this duty is the correct compliance of his obligations relating to the employment contract. When this duty is breached, comes into play the disciplinary power of the employer, which can impose a sanction. The concept of disciplinary power is defined as the ability of the employer to correct the behaviour of the worker through a penalty prescribed by the applicable collective agreement, when the conduct is constitutive of labour violation. This power is based on constitutional articles and on articles of the "Estatuto de los Trabajadores" (ET). The disciplinary power of the employer is limited by the principles of criminality, proportionality, non bis in idem principle and by the prescription of labour violations.

That said, it is obvious that the absences and the delays, when unjustified, involve a breach of the duty of care, and therefore may give rise to a sanction by the employer. The absence in the workplace is that absence that is extended to a whole working day, while the delays are defined as those partial withdrawals of working time at the beginning, during or at the end of the workday.

In view of this breach of contract, the only legal mechanism of penalty is the disciplinary dismissal. The disciplinary dismissal is regulated in the 54 article of ET, specifically the 54.2.a) article contains as ground for dismissal, the absences and the delays. In order to penalize the absences and tardiness with disciplinary dismissal, the punishable behaviour must be repeated and unjustified. The fact that the behaviour must be repeated causes a discussion in relation to the principle of non bis in idem, and therefore if the infringement is repeated, we can talk about recidivism. This recidivism is provided for in some collective agreements and it's allowed to sanction twice the same behaviour, without violating the non bis in idem principle. The doctrine argues that when a worker is fired for recidivism, it isn't because of his behaviour, but of the persisting breaches.

Finally, analyzing the collective bargaining in 2012 (CC), with respect to tardiness, there are different ways to compute them, in order to classify them as minor, serious or very serious. Thus, there are CC that considers only the number of delays, others considers both the number of delays as the delay time of each unpunctuality, others take into account the number of tardiness and simultaneously the sum of the minutes of all them, and finally some choose to attend only to the total length of all the delays. In the field of absences, they do not have a special way of calculate them, but an absence is equivalent to the entire working day. In both cases, they are more restrictive CC , and others that are more permissive, and CC highlighted for their specificity or generality. Once the workers' conduct typified as minor infringements, serious or very serious, you have to look at the punishment it deserves. Therefore, CC divides penalties classes according to the seriousness of the workplace violations. Thus, there will be penalties for minor, serious or very serious infringement. The penalties that appear in all collective agreements and that are of fundamental importance in the system of sanctions are the warnings, the suspension without pay and the disciplinary dismissal. From there, we find some CC that includes forced relocation and some limitation or prohibition for promotion. The wage proportional discount, although being a penalty, does not appear as such in the collective bargaining in 2012.

Therefore, most of the CC set as minor infringement, the commission of three delays or an absence day within a month, and therefore attributes a sanction of a warning, verbal or written, or a suspension of without pay for up to two days. In the case of serious infringements, consisting of several delays or two unexcused absences in a month, all CC determine as punishment the suspension without pay for a period of up to 15 days. Finally, are counted as very serious infringements, plus 10 delays in six months or more than 20 in one year and 3 consecutive days or five days alternate of absence within a month, anticipating a penalty in the suspension without pay of up to 60 or 90 days, the temporary or permanent forcible removal, disqualification to temporary or permanent promotion or disciplinary dismissal.

Ultimately, it is crucial that both the worker and the employer know that tardiness and absences in the workplace, while they are unjustified, are subject to sanction. Therefore, in order to criminalize the conduct is essential to go to the Collective Agreement applicable, that will indicate the appropriate punishment.