The discontinuous landlines have marked an important debate in Spain because they arrived to avoid temporality. For this same reason, this type of contract has been gaining ground within national companies that decided to have a seasonal and stable workforce, reaching 1.6 million employees in this modality in Spain according to the latest data provided. by the Public State Employment Service (SEPE). However, when they are in a period of inactivity, the company can damage an appeal for reinstatement, and in case of non-compliance, these could be considered as a voluntary withdrawal.
As confirmed to this newspaper by the Ministry of Labor and Social Economy, if the employee does not respond to the appeal made “in the legal and conventional manner provided for without justification, it would be an abandonment or resignation.” Thus, there would be an extinction of the contract by the will of the worker, they indicate. From the Spanish law firm, Garrigues, they also settle that this situation can bring different consequences and that the company can act in two particular ways. The first option would be to dismiss the worker, which implies classifying this case as a voluntary leave. While the second act of the worker can be sanctioned to the discontinuous fixed in accordance with its application agreement, such as dismissal for unjustified absences, for example. This point, contrary to the first, takes into consideration that it requires more waiting time to carry out the procedures.
There are different circumstances in which a worker could not respond when the company is seeking their reinstatement. In the first place, that this be done in writing and not reach the hands of the discontinuous landline because he has changed his address without notifying the company. In the second case, it could be that he arrives at said address; however, the worker is out of the country; and finally, that when the notification arrives, the person is providing services to another company. Thus, if a situation like this occurs, after the company’s decision, the worker could file a claim before the social jurisdiction in order to challenge the decision.
From the legal department of Garrigues, they reinforce that some collective agreements have qualified the non-attention to the appeal as a resignation. But they clarify that the judicial pronouncements are diverse because some courts accept the figure of resignation, but others reject it, even when the collective agreement establishes it. In the latter case, it is considered that the voluntary resignation, associated in this case with the non-reinstatement after the call “requires an incontestable will in this regard, without giving rise to reasonable doubts, so that the employer knows it, expressly”, indicate from the firm citing the judgment of the Superior Court of Justice of Catalonia of July 25, 2022.
This same brief from the Court, given that in order to clearly demonstrate it, there will have to be “written or verbal signs that directly explain the intention of the interested party; or tacitly: behavior of another class, from which it can be clearly and conclusively deduced that the employee he wants to end his labor relationship.” The strike by the Ministry of Labor varied between 136,000 and more than 440,000 people last year.
In this sense, the increase is due to the fact that since the last labor reform was carried out, some companies have opted more for this type of contracts to combat temporary employment, which was one of the main focuses of the modification to the regulations. Even so, the regulation of fixed-discontinuous lines has left much to be desired for some groups and especially for the political sphere due to the “lack of transparency” in this regard. For example, this type of contract has been one of the strongest targets for the Popular Party to criticize the Government, because they accuse it of “dirtying” the figures. Ciudadanos has also been another critic in this area. His idea is “to know the truth about the situation of the Spanish labor market” and for this reason, both parties demand a difference in the data.
This has also been the case of the Organization that includes the most developed countries on the planet, the OECD, who has said that the effectiveness of the permanent-discontinutinum contracts will have to be confirmed by evaluating their impact, which will be done IN 2025 with the aim of correcting possible deviations and guarantee new advances in the Spanish labor market. From Garrigues they also add that there is a lack of work at the moment and they think that the current regulation has not solved some problems such as “the possibility or not of signing the fixed-discontinuous part-time contract when the collective agreement does not expressly provide for it, or the minimum interruption between appeals so that a contract of this nature cannot be considered ordinary indefinite”, among others, settle, after expressing the cases of resignation and dismissal from a contract like these.
