The TSJ Burgos has declared that temporary public sector workers may apply for voluntary leave for particular matters,as applying the regulations and jurisprudence in the EU,the situation of temporary or duration of the contract is not an objective or reasonable cause for refusing the right to leave.
Voluntary leave from an interim contract
A worker provided services for a City Council under a full-time interim contract, with working hours from Monday to Sunday and salary according to agreement. In January 2017, the same City Council made an appeal to the worker to fill a position of family educator on a temporary basis,so she requests a voluntary leave for particular matters in the previous position.
At that time the City Council denies the leave requested by the worker considering it incompatible with the interim contract, so the worker files a lawsuit requesting that the situation of voluntary leave be recognized, which is dismissed.
Faced with this situation, the worker lodges an appeal before the High Court of Justice of Burgos. The question to be discussed is whether it is possible to request a voluntary leave of absence from an interim contract.
The TSJ recalls that the previous pronouncements had established the incompatibility of voluntary leave with the eventual contract, considering that the legal nature of the interim, which excluded the possibility that this contract, is dissociated from its cause (replacing a worker with the right to reserve the job or to fill a vacancy subject to a selection or promotion process).
However, the TSJ understands that this has been overcome by the rulings of the CJEU on temporary hiring, interpreting the Directive on equal treatment of temporary workers and enshrining the principle of non-discrimination. This means that fixed-term workers cannot be treated less favourably than permanent workers, simply because of the duration of their contract. Thatis, the situation of temporality or duration of thecontract, is not an objective or reasonable cause to deny the right to leave.
Moreover, the temporary nature of the employment relationship, or the fact that there are no provisions in the national legislation relating to the grant of such a right, are not regarded as sufficient or objective reasons to justify such a differentiation between temporary and permanent workers.
Therefore, the appeal raised by the worker against the judgment issued by the social court is upheld.
Assumption of voluntary leave in your company
Imagine that an employee of your company has asked you for a voluntary leave of absence from one day to the next. But in addition, the request has accumulated with that of other workers who are also going to be on leave …
How can you manage this situation?
If one of your workers asks you for a voluntary overnight leave, can you demand a notice period? And if you have received several requests for voluntary leave in a short period of time, can you deny any of them?
Here’s an answer to one of these questions:
If one of your workers notifies you that you are going on voluntary leave, you should be aware that:
- Your employee is entitled to voluntary leave for a period of between four months and up to a maximum of five years, provided that he or she has a seniority of at least one year, and that four years have passed since the end of a previous voluntary leave.
- The law does not require any specific notice period. However, review your agreement. For example, the agreement of private insurance mediation companies requires workers to give one month’s notice of the start date of the leave.
Our recommendation is that, even if your agreement does not require a notice period, both you and the worker must act in good faith. Therefore, if the absence requires a reorganization of the tasks of the department or the hiring of a substitute – circumstances that will occur in most cases – it would be correct to grant the leave, but with effect for a few days later; in order to be able to reorganize tasks or a substitution, before the worker’s departure.
Consider as a reasonable period the notice that your employee should give you in case of voluntary cessation (the days provided for in the agreement or, in your absence, 15 days, which is the period established by the uses and customs).
Multiple requests for voluntary leave at once
In addition to the request of the employee in question, your company has received more requests for voluntary leave in a very short period of time. Therefore, you need to know if there is any limit to the granting of leave to workers.
Well, you should keep in mind that:
- In general: If your employees meet the requirements of seniority and duration of leave indicated, your company will not be able to oppose since it is a right that the law recognizes to workers.
- Exceptionally, you may refuse voluntary leave if your employee expressly indicates his intention to work for another competing company and incurs unfair competition. In this type of case, our advice is to respond to the affected employee, indicating that your company cannot accede to your request immediately (alleging organizational reasons, such as the high number of requests received in a few days and the difficulty of filling those positions with so little time), and propose to the worker another start date. You will gain time and prove your good faith, as you will not be denying your right.
If voluntary leave is granted
In any case (whether you propose another start date, or if you do not have time to answer), an employee cannot start the leave unilaterally and without prior authorization from the company, so the right thing to do in this case would be to ask for its recognition before the courts.
If, however, your employee initiates the leave unilaterally, you must sanction him for unjustified absences of attendance or for abandonment of the position.
And if the breach persists, it could proceed to his dismissal.
You cannot require your employee to notify you and you cannot refuse leave, even if there are several employees in the same situation. In these cases, act in good faith and grant leave by postponing the effective date.
Issues to remember in the case of voluntary leave: Rights and duties
1 – Re-entry:
- Unless otherwise agreed, the worker only retains a preferential right to re-entry into vacancies of the same or similar category in the company;
- the worker must apply for re-entry before the end of the leave, within the period fixed by the collective agreement;
- the collective agreement may lay down conditions limiting the right to re-entry.
2 – Work duties:
- The employment relationship is not terminated. Work duties remain.
- It is a work duty, not to work for the competition during voluntary leave. It is considered unfair competition, and may justify refusal to re-enter or dismiss.
3 – Antiquity:
The period of voluntary leave is not computed for the purposes of:
- nor for the calculation of severance pay.
4 – Termination of the contract:
The worker is not entitled to receive compensation from the collective dismissal.
5 – Company succession:
The new employer is subrogated to the obligations of the previous one with respect to the surplus worker. The latter maintains his right to request re-entry before the new owner of the company.
6 – Quote:
During voluntary leave there is no obligation to contribute. The company must cancel the worker in the Social Security.
7 – Special Agreement:
The worker can sign a special agreement with the Social Security to remain in a situation assimilated to the registration in order to cause the right to the benefits that may be offered.
If after reading this article, you still have any doubts about the voluntary leave that any of the employees of your company can request, you can contact our team of experts in labor advice.