The Social Court No. 4 of Santander has declared two permanent drivers of the Municipal Urban Transport Service of Santander (SMTUS) who have a temporary employment contract since 2007.
In a sentence recently notified, and which can be appealed before the Social Chamber of the Superior Court of Justice of Cantabria, the head of the Court estimates the demand of the two workers and recognizes the right of both to hold a fixed employment relationship.
As explained in the resolution, both workers attended the call for forty permanent vacant driver positions in the SMTUS workforce, which the Santander City Council called in 2006, through free competition.
Both passed the three exercises of the opposition phase but did not obtain a place and passed a training part of the job bank designed to temporarily fill vacancies due to jubilation, production adjustments, enjoyment of licenses, or long-term sick leave.
As the phrase related, in the summer of 2007 both entered into an interim employment contract in a vacant position "to temporarily cover a job during the selection or promotion process, for its definitive coverage, and which would extend from that date until the incorporation of vacancies for the next opposition”. These contracts are currently in force.
The positions of the two workers are included in the 2018 public job offer and the bases that will govern the selection process in which these positions are currently being prepared are being prepared.
Mixed positions
In their lawsuit, the two workers argue that they are covering permanent needs of the company, since they have been in the same position since 2007, and that they accessed the stock market because they had passed a selective process for permanent positions, although there was not one.
For its part, the SMTU defends the temporary nature of the contracts and stresses that from 2010 to 2016 there was a zero replacement rate, so that oppositions cannot be called in that period.
The head of the Social Court No. 4, however, considered that "after almost fifteen years of duration of the interim contract" the term of three years that the Supreme Court estimates that contracts should last as a maximum has been "widely exceeded". of interim, "without there being any extraordinary cause that justifies that duration, nor can it require as such the budgetary restrictions to which the lawsuit clings".
Whenever they should be considered permanent or not, taking into account that the Court of Justice of the European Union indicated that the transformation of fixed-term employment contracts into indefinite contracts is not imposed on the States, the magistrate attends to the solution given by the Supreme Court in a recent ruling, dated November 2021.
Thus, if the worker has obtained in a call for permanent positions, has passed them but has not obtained a position and then has attended a position with a temporary contract, "the condition of the worker must be fixed, because then the requirements would be fulfilled. principles of equality, merit and capacity, without the fact of not having obtained a position preventing the fulfillment of those constitutional requirements”, he concluded.
