Temporary contracts: calculation of seniority

The 4th Chamber of the Supreme Court, in a ruling dated April 14, rejected the appeal for unification of doctrine filed by the plaintiff (who sought unity of link), confirming the request ruling.

This ruling analyzes the doctrine of the essential unity of the bond in an employment relationship. This is a case in which the worker had more than twenty temporary contracts in a period of 6 years, with periods of non-activity of between three and seven months existing between the same periods, which prevents such a unity of relationship from being presumed.

After the termination of the last employment contract, the worker files a claim for unfair dismissal before the Social Court of Segovia, which upholds the same and condemns the company to pay compensation of €9,447.37 or to reinstate the worker in her position. of work.

The convicted company files an appeal against the previous resolution, before the Social Chamber of the TSJ of Castilla y León, which rules that there was unfair dismissal, but that the hiring chain had been broken as there were almost seven months between March 21 2011 (when the provision of services derived from the contract signed a year earlier ended) and the following October 17 (when the penultimate contract began to take effect). Therefore, it condemns the company to pay compensation to the worker of €737.50.

The appeal filed by the worker before the TS considers that article 56.1 ET imposes the obligation to compute all the years and months of service of the employment relationship. Interruptions of more than twenty business days do not break the essential unity of the link, unless they are significant. In this case, the interruption cannot be considered significant if one takes into account "the type of functions, their continuity and, above all, the total period of the entire duration of the employment relationship with all its contracts." For this reason, it is alleged as a ruling of Contrast that dictated by the Social Chamber of the TSJ of Andalusia (Seville) dated November 14, 2013 (rec. 2724/2012).

After a presentation of numerous sentences that establish the meaning of the essential unity of the employment relationship, the Supreme Court considers that the legally required identity does not exist for the comparison to proceed between the case examined and that of the contrasting sentence. The appeal is based on the fact that the identity already exists due to the fact that the break between one contract and another lasts more than twenty business days. But this is a misinterpretation of our doctrine; What it establishes is that exceeding the expiration period for the purposes of suing for dismissal does not prevent the continuity of the relationship from existing.

For the essential unity of the link to exist, many circumstances must be assessed, especially the entity of the interruption between contracts.

For this "essential unity of the link" to exist, all the concurrent circumstances in the case must be assessed (tasks, validity of contracts, time worked before and after each parenthesis, entity of the intermediate, etc.). One of such circumstances, if not the most relevant, is that referring to the entity of the interruption that mediates between one contract and another. It cannot be claimed that whenever 20 business days are exceeded, the cases are identical.

The appealed ruling carried out an examination of the data of the case, concluding that the doctrine on essential unity of the link could not be applied. His reasoning was the following: «The doctrine established in that series establishes the principle of the essential unity of the contract, when the repetition of temporary contracts evidences the existence of a contracting unit. But such a presumption of unity of purpose in contracting cannot be deduced in cases, such as the present one, in which although there were more than 20 contracts in the six-year period, on at least four occasions, the cessation periods reached more than three months and even five and six months.

Once the absence of factual contradiction between the contrasted cases has been noted and the TSJ has assumed the criterion of the TSJ ruling, it makes a final assessment of the doctrine supported by the contrasting resolutions.
The now respondent knows, cites and contextualizes the doctrine applied by the contrasting ruling. But in view of the months that elapsed between March and October 2011 "we understand that such interruption means that the essential unity of the contract cannot be presumed." Consequently, there are no contradictory doctrines that we must unify; The appealed ruling wishes to apply the same doctrine as the contrasting one but rules out the possibility of continuity of the employment relationship in view of the repeated factual circumstances.

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