The Contentious-Administrative Court number 3 of Santa Cruz de Tenerife has recognized the condition of permanent statutory personnel of the Canary Health Service to an internist doctor who spent 18 years working at the Nuestra Señora University Hospital de la Candelaria in Santa Cruz de Tenerife with temporary contracts, even after passing the examination for Specialist Physician of Area (FEA).
The judicial authority appreciates in the case “a real situation of abuse in hiring and therefore of fraud of law during the entire concatenation of appointments, without solution of continuity, from December 21, 2006 to the present, and for almost 18 years”
The ruling proclaims that, since there is no sanctioning rule for this abuse in the internal order, “it is appropriate, in accordance with the most recent jurisprudence of the CJEU and having passed the actora a selective process under the principles of publicity, equality, merit and capacity, this “has acquired the condition of permanent statutory personnel in the administration demand”.
The ruling lists the 10 temporary contracts that the Canary Health Service chained with the doctor from December 2006 until the publication of the sentence, on November 19. It details that all of them were formalized so that the actress could perform her functions as a Specialist Physician of Area (FEA) in the Internal Medicine Service of the HUNSC, and cites the report that the head of the service evacuated with respect to the interested party: “In the Service (...) all the statutory personnel, both career and interim and eventual (...) perform the same functions (...) without [the plaintiff] performing extraordinary and exceptional or conjunctural tasks, but simply assumes the same responsibilities and performs the same functions in his shift as the career statutory of the same body”.
The judicial authority points out that the Administration responded to the claim alleging that the law allowed it to hire temporarily for reasons of urgency, necessity, temporality, conjuncture or extraordinary without incurring in a situation of abuse, and responds that “at the initial moment of the appointment could be justified, but no temporality or conjunctural situation can be attributed to maintaining the job, for 18 years”.
The ruling points out that from the documentation provided by the actress “there is no doubt about the abuse and fraud of law”. The ruling is susceptible to appeal before the Contentious-Administrative Chamber.
