Friday, September 24

The Canarian Health Service condemned for the unfair dismissal of an interim who filled a vacant position for more than seven years

The Supreme Court has ratified a sentence against the Canary Islands Health Service (SCS) for the unfair dismissal of a worker who worked for more than seven years with a fixed-term contract, on an interim basis for vacancy, at the Hospital Universitario de Canarias (HUC ), located on the island of Tenerife. The Social Chamber of the Spanish high court has applied the change of doctrine that it established last June on the abuse of temporary employment in public employment. A rectification that occurred after the forceful ruling issued by the Court of Justice of the European Union (CJEU) against a practice perpetuated in the Spanish public administrations, the successive renewal of temporary contracts beyond the three years that it establishes as a maximum the Basic Statute of the Public Employee (EBEP) in the absence or delay in the calls of the selection processes for the definitive provision of positions.

The legal services of the SCS had decided to exhaust their options before the Supreme Court after both the Social Court 5 of Santa Cruz de Tenerife, in the first instance, and the Superior Court of Justice of the Canary Islands (TSJC), after the first appeal, proved the plaintiff, a specialist maintenance technician who began his employment relationship at the Tenerife hospital in December 2011 with a fixed-term, part-time contract (35 hours a week) and a gross salary of 21,500 euros per year, divided into fourteen pays. He was fired in March 2019 after the regional administration resolved, twelve years after being called, the public offer of employment to fill the vacancy and assigned it to another worker indefinitely, as permanent staff.

The first sentence, issued by the Social Court 5 of the capital of Tenerife, had recognized the interim status of permanent worker, since his contract had lasted more than three years and had been concluded “in fraud of law”, since “It had to be resorted to the hiring of a fixed nature.” The resolution condemned the autonomous administration to reinstate the technician and pay him the wages he had not received since the expiration of the contract or to compensate him with the amount of 14,195.72 euros.

The Canary Islands Health Service appealed when it understood that the deadline for calling the selection process had been suspended due to the application of successive budget laws and that, therefore, there was no fraud. However, the TSJC ratified the initial resolution. “The allusion to a public offer of 2007 not resolved until 2019 denotes a negligence on the part of the administration that does not come to justify the long-term hiring,” the ruling read. The Canary Islands high court confirmed the worker as permanent non-permanent staff due to “the unusual duration of the employment relationship and the lack of interest” of the managers of the Canary Islands public health when it came to permanently providing the place.

In its appeal for the unification of doctrine before the Supreme Court, the legal services of the SCS provided as a contrast sentence a resolution, issued by the high court in May 2015, which had given the reason to the public administration, in this case the Madrid Social Care Agency, and had rejected the claims of the plaintiff, a temporary worker (hospitality assistant in a nursing home) who was fired for the statutory coverage of the square through a consolidation process. That was the question that the Supreme Court had to elucidate, “if in the field of public employment an interim contract for vacancy that is held in compliance with all legal requirements is distorted as a result of the passage of time, without the administration starting actions tending to his summons “.

It is at this point where the reference to the ruling of June 3 of the Court of Justice of the European Union appears and the consequent change of doctrine of the Supreme Court. Until that date, the Spanish court had ruled out that the three-year period set in article 70 of the Basic Statute of Public Employees as the limit to convene the selection process for a vacant position would be applied automatically to convert the interim into a permanent non-fixed position. . European jurisprudence has modified this position. Now it establishes that, “except for very few and limited exceptions,” interim vacancies that exceed three years must be considered “unjustifiably long” and, therefore, workers in this situation have to go on to hold the status of indefinite. fixed and receive the corresponding compensation in case of unfair dismissal.

In the ruling in which it decreed the change of doctrine, the Supreme Court specified that this three-year period was not interrupted by budgetary regulations on the suspension of public job offers, one of the arguments that the SCS seized on, since ” the coverage of vacancies covered by interns does not imply a budget increase “.

With respect to the contrast sentence, the high court also appreciates a significant difference. And it is that while the one referred to the worker of the Madrid Social Care Agency obvious if there is fraud in the hiring, the resolution of the Superior Court of Justice of the Canary Islands on the case of the HUC maintenance technician does study and resolve this issue and , in fact, “it dismisses the appeal of the Canary Islands Health Service precisely because it appreciates the existence of fraud.” By rejecting the appeal of the autonomous administration, the Supreme Court declares that sentence final and, in addition, imposes the payment of the procedural costs to the regional government: 1,500 euros that are added to the 300 to which it was already sentenced after the first appeal, the of supplication before the SCS.

Decree validated in Congress

The Congress of Deputies validated on July 22 the decree law that aims to end an endemic evil in the Spanish public administration: the abuse of successive temporary hiring. The objective is to reduce the temporary employment rate from the current 28% to 8% in 2025 through stabilization processes for interim personnel in which the opposition phase will be worth 60% and the experience, up to 40%. In addition, it provides compensation equivalent to 20 days of salary per year worked (with a maximum of 12 monthly payments) for those workers who, having been victims of this situation of law fraud, are left without a place after the celebration of these public job offers. .

The decree law could be validated thanks to the inclusion, at the last minute, of some new features. Specifically, the possibility of automatically consolidating the position, without the need to contest and through an assessment of merits, for those temporary workers who have occupied a position continuously for at least ten years without the selection process having been convened. for the definitive provision of structural positions. In addition, it allows communities to decide that the opposition phase is not eliminatory in the stabilization processes of temporary staff.

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