The labor policy followed by the previous management of the Tourist Centers has suffered a new setback in the courts, which have again condemned the public entity for making temporary contracts "in fraud of law". The new ruling, issued on August 19 by the Social Court Number 3 of Arrecife, orders to recognize as permanent a worker who managed to chain more than 50 temporary contracts and several extensions in just over three years.
Although the last contracts were signed directly with the CACT, most were made through the temporary employment company Activa Trabajo Canarias and had an average duration of one week, stopping this worker for about seven days and then re-hiring him. And in almost all cases it was to provide services as a parking attendant in Montañas del Fuego.
"With this way of proceeding, the company Epel CACT covers structural positions created through the appointment of temporary personnel despite the fact that there is a permanent need for labor and condemns temporary personnel to suffer unjustified job insecurity," the ruling states, adding that with this they also "distorted the contractual figure provided for in the Workers' Statute", which contemplates temporary hiring only when there are justified reasons for it.
The Court dismantles the arguments of the previous management
In this case, as in all those in which it has resorted to hiring through temporary employment agencies, the previous management of the Centers argued that it resorted to this route in the face of an "abnormal excess in the usual needs of the staff", pointing both to the need to cover sick leave and vacations and to "the greater influx of visitors". However, after analyzing the documentation provided, the Court concludes that they have not even demonstrated this increase in the influx in the period in which these hirings occurred, which was between May 2016 and July 2019.
In fact, it emphasizes that "the influx of visitors to the Montañas de Fuego center in 2017 was lower than in 2015" and that "therefore it is notorious that in that year there was no greater activity in the company that justified the need to resort to the temporary hiring of the worker". In addition, these hirings were not focused on specific months of greater influx, but occurred throughout the year. This is clearly reflected in the ruling, which dedicates 7 of its 14 pages only to list each of these contracts, some of them lasting only one day and most of them lasting one week.
"What emerges from the evidence presented is that temporary hiring was used not to cover a specific need of the staff, but structural needs of the company," the ruling insists, adding that "the fact that the plaintiff had been providing services as a parking attendant since May 2016, "without any extraordinary need for work or a known and foreseeable temporary need being proven", is also revealing of the existence of a permanent need for the service.
"A fraud of law is being incurred"
Regarding the argument that with his hiring they also intended to cover sick leave and vacations, the Court rejects it insisting that "the temporary hiring of the plaintiff has been used to cover different periods", which "allows to conclude that the need is regular and repeats itself, and therefore the defendant company cannot resort to the temporary contract, but should have formalized a permanent discontinuous contract and by not having done so is incurring in a fraud of law".
Therefore, it upholds the lawsuit filed in November 2018 by this worker and condemns the Centers to recognize the permanent nature of the employment relationship, with seniority from May 17, 2016, which was when the first contract was signed.
As for the company Activa Trabajo Canarias ETT, against whom the lawsuit was also directed, the ruling acquits it, pointing out that when the worker went to court, the employment relationship with it had already ended. Specifically, the worker stopped being hired through this ETT in July 2018, when he began to sign contracts directly with the Tourist Centers. In this regard, the Court cites jurisprudence that indicates that the illegal transfer of workers -which was what the plaintiff maintained had occurred- must be denounced before the "irregular situation" ceases because "once the transfer has concluded, the exercise of that action of fixity is not possible, even if it was illegal".
Thus, it condemns only the Tourist Centers, in a ruling against which an appeal may still be filed with the Superior Court of Justice of the Canary Islands. In addition, this ruling adds to at least another that already gave the reason to a worker hired through that same ETT. In that case all the contracts were signed through this company, which was also condemned for illegal transfer of workers. In addition, the ruling considered it proven that this worker, who chained 15 contracts in four months, was dismissed as retaliation for having initiated actions to claim her rights, so it annulled the dismissal and condemned the CACT to reinstate her and pay her all the salaries since the employment relationship ceased, as well as to pay her a compensation of 6,251 euros for "moral damages".
Change in the contract after the first ruling
It was after that ruling was issued that the worker who has now seen his lawsuit upheld went to court. In addition, as a result of that first ruling, the Centers changed the contract model they had with him, moving to sign a temporary contract of interim, "to temporarily cover a job during the selection process for its definitive coverage".
In this regard, the new ruling points out that although that interim contract was used, "the specific and specific position that was without a holder was not identified", so "it is not possible to know if the plaintiff effectively occupies one of the positions that are supposedly to be covered by competition". In addition, it emphasizes that "the existence of a procedure currently underway for the coverage of parking attendant positions is not accredited either".
In its response to the lawsuit, the CACT also requested that in case of recognizing the fraud in the hiring, this worker be given the category of permanent non-fixed. In this regard, the ruling makes it clear that this condition of permanent "would only be achieved through a regulatory selection process in which the constitutional principles of merit and capacity for access to public service concur". Therefore, what it obliges is to convert him into permanent, which in the public sector does not imply the category of permanent. And it is that, as the ruling states, there are forms of contracting in the administration without incurring in fraud.