Ever since the European Union’s High Court of Justice (TSJUE) established, in a ruling dated 14.09.16, the so-called “Diego Porras Doctrine”, which recognized the right of an interim worker with a temporary contract to receive, upon termination of the contract, the compensation provided for objective dismissal, i.e. 20 days per year of service with a maximum of one year’s salary, numerous judicial decisions have been made in favor of and against the controversial right to receive such compensation.
One of the most representative judgments against this right is that established by the Grand Chamber of the TJUE, dated 05.06.18, in the case of Montero Mateos which we analysed in our AddNEWS of July 2018.
These judicial pronouncements differed essentially in the causes for termination of employment contracts, that is to say, in temporary contracts the parties already know from the time of their conclusion the date or event that determines their termination, while the causes for termination provided for in objective dismissals take place when circumstances occur that were not foreseen at the time of their conclusion and which represent a radical change in the normal development of the employment relationship. In the first case, and provided that the duration of the contract is not unusually long enough to reclassify the contract as permanent, the indemnity would not be payable (Montero Mateo doctrine). However, in the second case, the Diego Porras doctrine would apply, and the worker would be entitled to the aforementioned indemnity as an objective dismissal.
The partner and lawyer of the labour area of this firm, Mr. Jesús Selma Prat, after claiming the Doctrine of Montero Mateos, in a procedure in which the right to receive a compensation of 20 days per year of service of a worker for the end of the interim period for vacancy, in which the temporary period was defined as “while the replacement lasts”, has recently obtained a ruling from the High Court of Justice of Catalonia (ruling dated 24.01.19), which states that, although the duration of the interim contract for replacement, the termination of which is uncertain, cannot be classified as a permanent contract (since the duration is less than one and a half years). And having indicated in the contract that its duration would be determined by the duration of the substitution, the worker knew from the outset that the employment relationship was not of an indefinite nature, and therefore does not give rise to any right to compensation, revoking the decision of the Court of First Instance which had originally granted such a right to the worker in question, in application of the well-known “Diego Porras” theory.
The aforementioned decision was obtained through a procedural channel that is not very frequent, since it was required to allege the notorious general effect of the case, which extends to all contracts that are entered into for temporary reasons, making it possible from now on to substitute for future cases, since access to the Superior Courts of Justice was in most cases restricted by the limit of the amount imposed for this procedural channel, as in this case, the defense of the worker was defended.
In any case, and as is always the case in the Social Courts and Tribunals, it is essential to review the specific circumstances of each case in order to defend one or another doctrine, which we undoubtedly offer to all our clients with a total commitment to service.