The Social Court Number 3 of Arrecife has ordered the Tourist Centers and the company Activa Trabajo Canarias ETT to reinstate a worker, to pay her all the salaries from the date of her dismissal - which occurred more than a year ago - and to pay her compensation of 6,251 euros for "moral damages."
The ruling, dated September 28, concludes that there was an "illegal transfer of workers" by the CACT, by using a temporary employment agency to cover "structural needs and permanent needs of the company." In addition, it declares the dismissal null and void because it occurred as a "reprisal," when this worker, linked to Las Kellys and affiliated with Sindicalistas de Canarias, went to Semac in defense of her labor rights.
The affected worker was first hired on May 4, 2017, to provide cleaning services through a temporary employment agency. That first contract was for 10 days, but as soon as it ended, she was hired again for 9 more days, in a situation that lasted for months. In total, according to the ruling, she chained up to 15 contracts in less than four months, some for only one day and others for up to 20. On August 11, 2017, just before the strike at the CACT began, this worker went to Semac requesting a conciliation act to claim her status as a permanent worker "derived from illegal transfer." However, not only was there no agreement, but she was not hired again.
She will be able to join the CACT staff
"None of the co-defendants has justified, much less proven, why the plaintiff worker was not called again for a new contract on this occasion, especially if we take into account that in less than four months the plaintiff had chained a total of fifteen temporary contracts," the ruling states.
In addition, it emphasizes that "the evidence presented shows that the business decision was an immediate and direct reaction to the worker's statement, without any other justification, since it has not been proven that there were relevant changes in the activity of the user or the temporary employment agency itself."
Regarding the CACT, it concludes that they resorted to a "fraudulent hiring", since she was not hired to meet a specific need but to cover "structural and permanent needs of the company." Therefore, the ruling orders the "immediate reinstatement" of this worker, stating that she may choose whether to return to Activa Trabajo Canarias as permanent or whether to join the staff of the Tourist Centers directly as "permanent labor personnel."
Temporary hiring for "permanent needs"
In their defense, the Epel of the Tourist Centers argued that they need to resort to temporary hiring when "there is a disproportion between the work to be done and the staff available," especially "given their status as a public sector, having limited staff hiring." However, the Court concludes that the evidence presented during the trial proves the opposite, since only a small part of those contracts were to address specific situations, such as covering the union works of a worker.
"Most of this temporary hiring is intended to cover both structural needs of the company, such as vacations, days off, personal matters, and leaves of the permanent staff of the Epel CACT, as well as permanent needs," the ruling states. In this regard, contrary to what was argued by the Tourist Centers, it maintains that "it cannot be argued that the different events organized at the Farmer's Monument or Jameos del Agua (such as communions or large meals) escaped the organizational forecast of the company," which precisely had a contract with a tour operator for lunches for groups.
Regarding the need to "respect the legally required procedures to occupy a job" in the public administration, the ruling considers that it also does not serve as justification in this case. "It is not that the defendant resorts to occasional hiring to cover vacancies that require immediate appointment, but rather the use of temporary hiring to meet permanent needs of the entity, such as the different contracted events and that cannot be considered as occasional increases in tasks," it insists.
