The Social Division of the High Court of Justice of Navarre (TSJN) recognises for the first time the case of a public administration employee who passed a competitive examination without obtaining a post in 2004. The ruling recognises her as a permanent employee after serving in the municipal lazaretto of Pamplona City Council for nine years without the post being advertised.
Until now, only the Social Courts had ruled in favour of permanent employment, but now, the TSJN has established very specific criteria that will allow hundreds of interim civil servants to benefit from this doctrine.
These would always be people who meet the requirements of having passed an OPE without obtaining a vacancy, having worked for many years in a vacancy as an interim without the vacancy having been put out to competition and provided that training and experience in their job can be demonstrated.
In the case decided by the TSJN, the plaintiff applied for a selection process to fill a permanent position as a Lacera Assistant in the service of Pamplona City Council in 2004. Despite passing the selection process, she did not obtain a post, but since September 2012 she has been working in one of the vacancies she tried to apply for through the competition she passed without obtaining a post.
In addition, during the process, the worker accredits that she has the appropriate and complete professional training to occupy this job.
The court formed by Carmen Arnedo, Miguel Azagra and Guillermo Leandro, confirms the judgment of the Social Court 3 of Pamplona, which in December 2021 admitted four cases against the Navarre City Council for abuse of the temporary nature of its workers. This ruling established the requirements for future claimants of the Public Administrations and obliged the City Council to declare permanent temporary workers who had taken up their posts to fill vacancies through a competitive examination which they passed, but in which they did not obtain a post.
Based on these premises, the Chamber determined that, once it had declared the fraudulent nature of the temporary relationship signed to occupy a post in the category to which the previous selection process corresponded, "the employment relationship of the municipal worker should be considered permanent because she had demonstrated the merit, capacity and preparation necessary for her definitive occupation".
THE TSJN QUESTIONS NON-REGULAR INDEFINITE-TERM CONTRACT WORKERS
In order to limit the abuse of temporariness in administrative hiring, the Supreme Court holds that in the cases described above, the employment relationship of individuals must be considered as indefinite not fixed.
However, the TSJN recalls that the Court of Justice of the European Union considers that the measure established in Spanish law of converting successive fixed-term contracts in the public sector into a non-fixed indefinite employment relationship is sometimes ineffective.
Thus, the Navarrese court questions whether such a non-fixed indefinite-term relationship is a really appropriate sanction to correct the Administration's blunder in signing a temporary contract declared fraudulent, when the person hired has passed a selection process to occupy a "permanent position", but has not obtained such a position.
Consequently, the TSJN understands that the sanction of declaring the employment relationship as a non-regular indefinite-term employment relationship is not effective in these cases and deserves to be considered as a regular employment relationship.
Source: confilegal.com
