Recognition of trienniums in periods in which there was no effective provision of services

The appeal for the unification of doctrine filed against the ruling handed down by the Social Chamber of the Superior Court of Justice of Castilla y León (Burgos) 292/2022 (recourse. Supplication 187/2022) formulated against the ruling handed down by the Social Court No. 1 of Ávila (records 605/2021) “claim of right and amount” against a Department is upheld. of an Autonomous Community.

The question that arises is to determine whether the worker, temporary/discontinuous personnel, has the right to have the periods in which he/she did NOT provide effective services counted for the purposes of the recognition of three-year periods.

The worker performed his duties as a driver for the defendant entity from July 18, 2005 to July 17, 2006 with a temporary interim employment contract terminated due to the termination of the contract. Subsequently, he was hired again by the administration with the same professional category in various periods between July 2015 and October 2021, accepting different types of temporary hiring (interim and temporary due to production circumstances). In each case, their employment relationship with said organization was terminated due to termination of contract.

Until the moment of filing the lawsuit, the plaintiff had two three-year periods that were not yet being paid. He claimed differences due to seniority supplement of 290.79 euros. The plaintiff was shown to have served for two years, ten months and fourteen days. The employment relationship was regulated according to the Collective Agreement for the workforce of the General Administration of the Community (...).

In the instance, the claim was partially upheld, recognizing the worker's right "so that, for the purposes of economic promotion linked to seniority, all the time that has elapsed since the beginning of the employment relationship, including periods of inactivity, is computed.". And it “ condemns the company to credit the seniority of the period from 9/1/2020 to 08/1/2021.” The aforementioned sentence was clarified by order and it is indicated that “it is necessary to clarify the ruling issued on January 13, 2022…the actor has been providing his services for the defendant under an employment contract signed on 7/18/2005…”

The TSJ of Castilla y León upheld the appeal filed by the Board, absolving the defendant entity of all the worker's claims.

In cassation, both the legal representation of the Board and the Public Prosecutor's Office did not appreciate any contradiction between the contrasting sentence and the contested one. However, the High Court determined the opposite, since, although both sentences dealt with the same claim, the reference sentence upheld it while the contested sentence was rejected.

The Chamber, after analyzing the reiterated existing doctrine on the calculation of seniority of “discontinuous permanent” workers in which the Court recognizes the right to include periods without activity for the purposes of economic and professional promotion, in order to avoid differences in treatment between part-time workers and permanent discontinuous full-time personnel upholds the appeal for the unification of doctrine, based on basic principles of legal security and equality, and not finding reasons that justify a different conclusion,house and annul the sentence handed down by the TSJ of Castilla y León and resolves the supplication debate by dismissing the appeal formulated.

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