Concatenation of contracts and dismissal claims

Concatenation of contracts and dismissal claims

Claim for dismissal. Concatenation of contracts. Comments from our Lawyers in Madrid

The plaintiff workers have been providing services on behalf of the Ministry of the Presidency, Justice and Security of the Canary Islands Government, with the following characteristics: One of the workers, from 11 November 2005, without a written contract, until 16 March 2006, when she signed a minor consultancy and assistance contract, which lasted until 17 July 2006; once it ended, she continued to provide services uninterruptedly, without a written contract, until 17 March 2007, when she signed a new administrative contract until 31 December 2007.

The other worker was linked to a minor consultancy and assistance contract, with a start date of 1-01-06 and until 31-12-06; subsequently, on 1-1-07, she signed a new contract for a duration of 1 month and when it expired, she continued to provide services without interruption and without any kind of contract until 5-03-07, when she signed a new administrative contract with a duration until 31 December 2007.

It is on record that the services were provided with different content from that which appeared in the administrative contracts and, subject to the orders and direction of the Head of Service. On 7 and 10 December 2007, the plaintiffs filed a preliminary complaint requesting recognition of their right to acquire the status of permanent or indefinite-term worker in the defendant Department. On 31 December 2007, they were informed of the termination of their contract.

A claim for dismissal was brought, which was upheld by the judgment of the court of first instance, which declared the employment relationship to be fraudulent, declaring the administrative contracting to be fraudulent and, furthermore, classifying the dismissal as null and void, due to breach of the guarantee of equality. The defendant administration lodged an appeal for judicial review, and the judgment of the High Court of Justice of the Canary Islands, based in Santa Cruz de Tenerife, of 24 November 2008 (Rec. 508/08), while upholding the finding that the employment relationship was fraudulent, overturned the nullity of the dismissal, finding it to be unlawful. After an exhaustive analysis of the doctrine on the guarantee of indemnity, it describes as very weak the only indication of possible retaliation, which is the filing of a prior claim by the plaintiffs against the Administration for the status of permanent or permanent employees, barely three weeks before the expiry date of their contracts.

Source: G.Elias & Muñoz Labour Lawyers in Madrid