The Social Chamber of the Superior Court of Justice of the Canary Islands (TSJC) at its headquarters in Santa Cruz de Tenerife has confirmed in all its terms the judgment of instance that in its day condemned the Ministry of Education, Culture and Sports of the Government of the Canary Islands and the company Aeromédica Canaria SLU for illegal transfer of workers, in reference to a special education technician who spent more than ten years chaining contracts as a fixed discontinuous to attend to students with disabilities or serious disorders enrolled in teaching centers of the Ministry.
The judgment confirms the criterion expressed by the judicial authority that saw the case in the first instance (the Social Court number 5 of Santa Cruz de Tenerife) to appreciate “illegal transfer of labor” from Aeromédica to the Ministry, rejects the appeal of the legal services of the Government of the Canary Islands, recognizes the affected party as a worker of the Ministry, orders that the collective agreement for the labor personnel of the Autonomous Community be applied to her and, consequently, orders that her remunerations be paid in accordance with that agreement.
In addition, it obliges Aeromédica Canaria SLU to the Ministry to pay the plaintiff a total of 20,998.25 euros “as salary differences corresponding to the period from January 2019 to October 2022, both inclusive, with 10% interest”.
The Chamber declares proven that between 2011 and 2022, the affected party chained a total of 14 contracts “of a determined duration, for work or service” with Aeromédica Canaria or with the services company Clece S.A. (Aeromédica would subrogate as employer in the workers of Clece in 2016) as a special education educator technician with a prorated gross monthly salary of 845.40 euros for part-time work.
Both the court at the time and now the collegiate body appreciate that this is a case of illegal transfer of workers, as it was proven in the trial that the plaintiff worked in a center of the Ministry of Education, “coordinating with the tutor of the enclave classroom, under the guidelines of the educational team of the center, to implement the programming established by the Ministry of Education; prepares the programming of the workshop classroom, executes the programs, evaluates the activities, etcetera, using for this purpose the material means provided by the Ministry or the students themselves, receiving instructions from the coordinators of the educational centers and coordinating with the personnel of the teaching center”.
The TSJC recalls that it already ruled appreciating the illegal transfer of workers in a “substantially identical” case in 2018, and adds that “it finds no reason to depart from what was then resolved”.
In reference to the allegations of the defendants that the activity of the plaintiff was not part of those that can be carried out by the educational administration itself, the court emphasizes that this was, “at least, doubtful”, especially “if it is taken into account that in the collective agreement for the labor personnel of the Autonomous Community of the Canary Islands are foreseen, in group IV, the categories of caregiver and educational assistant”.
“What is really determining of the existence of illegal transfer”, he emphasizes, “is the way in which that service was being executed, because the service was not provided in premises owned by the defendant companies, with the means provided by them and exclusively with their own personnel”.
On the contrary, he continues, “the service was carried out in the educational centers of the Ministry (…) with the material means existing in those centers, during the opening hours of the same and side by side with the educational personnel (…)”.
The judgment highlights that it is not recorded that the defendant companies (referring to Aeromédica and Eulen, although the latter was acquitted by the subrogation) had provided material means to carry out the work, “since the existence of a distinctive of Aeromédica Canaria can hardly be considered a material means necessary to execute the work”.
The resolution is subject to appeal for cassation for the unification of doctrine before the Supreme Court, but for its presentation it is necessary to deposit 600 euros and present a judgment issued by another court that in an identical case has reached a different conclusion.
