The Judgment by the Supreme Court of 02/12/2020 issued in Unification of Doctrine corrects the previous doctrine and questions the interval between contracts that was considered sufficient to date as a “significant interruption” that breaks the essential unity of the labor relationship.
Despite the fact that the recent reform of the temporary contract will reduce this type of contract to a minimum, we believe that this issue is still relevant, especially to correctly calculate the compensation for objective dismissals. We know that an incorrect calculation due to incorrect seniority is fatal.
Those of us who have been dealing with judgments for some years still remember the great jurisprudential doctrine by virtue of which, once the expiration period of 20 days had elapsed for the exercise of the action against dismissal, the employment relationship was understood to be extinguished for all purposes and, therefore, the seniority counter for the purposes of dismissal was reset to “0”.
I say great, not because I think it was good one (in fact, I think it gave rise to abuses on certain occasions ), but because there was a certainty: if 20 working days passed and there was no claim by the worker, the previous temporary contract was forgotten and had no impact on subsequent hires.
In these times of convulsive regulatory changes, some of them amended within a few hours, certainties are scarce, which does not help when looking for reliable solutions to our clients.
This doctrine of 20 working days was replaced by the so-called theory of the “essential unity of the relationship” (“unidad esencial del vínculo”) which indicated that a reasonable period of time had to pass, which was called “significant interruption” (“interrupción significativa”), in order to discard the previous temporary contract and not take it into account in the calculation of seniority for the purposes of a subsequent dismissal.
This significant interruption was set at around 3 or 4 months, if there were no exceptional circumstances; especially if that period did not coincide with the holiday break. It was understood that, if 4 months had elapsed since the termination of the previous contract, there was no longer a reasonable expectation of continuity in the company and, therefore, the unity of the employment relationship was considered broken. It was understood that, if 4 months had elapsed since the termination of the previous contract, there was no longer a reasonable expectation of continuity in the company and, therefore, the unity of the employment relationship was considered broken.
Well, this half-certainty (we say half-certainty, because those three months were never fixed as if it were an unquestionable period) that the 3-month period offered us is volatilized again. The judgment of reference considers that there has not been a rupture of the essential unity of the relationship despite the fact that the worker spent 6 months and 6 days in the dry dock.
The judgment argues that this 6-month period was artificially created by the company as a firewall, to leave behind 57 months of uninterrupted work through fraudulent temporary contracts; the last contract, after the six months and peak of interruption, was also fraudulent. All the contracts were based on the same permanent business need.
In the case analyzed, one of the typical ingredients of the fraud of law concurs: I let the legal term of 6 months elapse to be able to continue with my “eternal” temporary contract and thus cover the file. It did not work out well.
The good thing – or bad thing-, depending on how you look at it, since it generates no small amount of uncertainty in personnel management – is that the sentence does not seem to definitively bury the 3-month criterion; which in certain cases could remain valid. It will have to be analyzed on a case-by-case basis.
One last detail that draws our attention to the judgment is the also uncertain, not to say capricious, criterion that the High Court has to filter the admisión of appeals in unification of doctrine. As the detergent advertisement would say: 9.5 out of 10 lawyers would have bet that the appeal would be rejected for lack of identity between the cases compared (a 3-month interruption was compared with a 6-month interruption), but as you know, when you enter a court, certainties do not abound either.