August 5, 2021

The Supreme Court declares void the dismissal of interns hired in an abusive manner

The Supreme Court declares void the dismissal of interns hired in an abusive manner


EP

MadridUpdated:

The Supreme Court has declared void the dismissal of interns after considering the abusive use of fixed-term contracts and has recognized their right to stay in their jobs and to receive the payments not paid while the Administration does not comply with current regulations.

Specifically, the fourth section of Room III of the Contentious-Administrative of the Supreme Court has issued two sentences in which partially annuls two resolutions of the High Court of Justice of the Basque Country in relation to the dismissal of an interim municipal official and an employee of eventual nature of the health services when a previous situation of abuse has been found in the successive use of fixed-term contracts.

The Supreme Court, applying the criterion of the Court of Justice of the European Union (CJEU), has pointed out that these dismissals of the two workers they are contrary to law, but that the current situation of abuse does not allow converting the temporary official or temporary public employee into "undefined undefined personnel".

With this statement, the Supreme Court has revoked the ruling contained in the judgments of the Basque Court, which had applied this figure of "undefined undefined personnel", typical of the relations subject to labor law, but which are not applicable to public employees linked to with the Administration when these are both interim and temporary public employees.

Likewise, for the High Court, the abuse resides in the subsistence and continuation of the employment relationships with the professional and economic rights inherent to it from the date of effects of the legal termination and until the Administration complies with what the applicable regulations order.

According to the regulations, the dismissal of an interim or temporary public employee can only take place when the post be covered by the corresponding procedure by official or career staff, when the holder returns, when the temporary program that must be executed ends or when the accumulation of tasks subject to the appointment ends.

Thus, the Supreme Court affirms that in order to comply with these regulations, the circumstances of the case must be considered. In the cases analyzed, it is found that the appointees met needs that were not provisional, but "permanent and stable".

For this reason, the Supreme Court considers that the functions provided, if appropriate, or not, should be assessed in order to expand the employment relationships of the workforce. If these functions have not been performed, the Supreme Court advocates resorting to the type of appointment that may be appropriate, preventing in any case the precarious situation of those who eventually and temporarily have to perform the corresponding functions.

On the compensation requested by those affected in the Basque Country, the Supreme Court has ensured that "not applicable", because "the maintenance in their posts that is declared with full receipt of the unpaid, repairs in full the damage caused."

However, in general, "those affected by the abusive use of temporary appointments are entitled to compensation, although the recognition of this right depends on the circumstances of the case, must be made in the same process in which the existence is declared of the situation of abuse and requires that the plaintiff point at the appropriate procedural moment to the damages and why they were caused ».

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