Compensation for unshodent dismissal Is it compensated with others?

In the cases of indefinite declaration of the employment relationship by succession of temporary contracts in fraud of law, the amounts received by the worker as compensation at the end of each contract, are not deductible from the compensation for unfair dismissal. The Supreme Court, qualifying its doctrine, has declared that this solution cannot be extended to compensation for termination of the last temporary contract, the amount of which must be deducted, in order to avoid duplication.

Qualification of the doctrine of the Supreme Court

Some workers provided services for a City Council under successive temporary contracts,always developing the same functions. With effect from 28-2-13, the City Council notified the employees of the termination of their contracts due to the end of the programs to which they were assigned. At the end of each temporary contract, the City Council provides the corresponding compensation.

The workers file a demand for dismissal that the Social Court estimates, declaring the indefinite employment relationship and the inadmissibility of the dismissal. It also ordered the undertaking to pay the workers compensation calculated on the basis of the length of service corresponding to the first of the temporary contracts concluded. The City Council then presents an appeal that the TSJ of Seville dismisses, also rejecting the claim to deduct the successive compensation paid as a result of the termination of the temporary contracts of the corresponding to the declaration of inadmissibility of the dismissals. The company appeals in cassation for the unification of doctrine.

The main question raised is to determine, in the case of fraudulent chaining of temporary contracts that are declared judicially indefinite, the appropriateness or not of deducting from the compensation for unfair dismissal the compensation already received for the termination of the temporary contracts signed.

The Supreme Court,applying its own doctrine (TS 31-5-06) rejects such a possibility since for two debts to be compensable, it is necessary that both are overdue, liquidable and enforceable. The amounts that are intended to be compensated with part of the amount of the severance pay were paid by the employer for the termination of the temporary contracts, which have subsequently been declared concluded in fraud of law. Therefore, they did not generate any debt from the worker to the company, and the debt did not exist, no compensation is applicable.

However, the Supreme Supreme Order considers that this criterion must be qualified. It considers that the reduction must operate on the compensation paid for the termination of the last temporary contract in respect of the compensation paid for unfair dismissal in order to avoid duplication. The final rupture of the link does not occur due to the regular termination of the temporary contract but due to an unfair dismissal for which a higher compensation is established and in whose calculation the period of provision of services corresponding to the last contract is integrated. The termination decision taken by the employer it is unique and must not be accompanied by a sum of compensation. Since the dismissal is the only one, the payment of the compensation corresponding to the classification of inadmissibility and not that relating to the termination of a temporary link is appropriate, so that what has already been paid must be deducted from what corresponds to the unfair dismissal.

Therefore, it partially upholds the appeal in order to resolve that from the compensation sums declared the amounts paid for the extinction of the last of the contracts signed by each worker with the City Council are deducted.

Compensation for Compensation

**Sentence 1 (Supreme Court 9-10-06)**

In cases of succession of temporary contracts concluded in fraud of law, the amounts received by the worker for the termination of each temporary contract are not deductible from the compensation for unfair dismissal.

Sentence 2 (Supreme Court 20-6-18)

That solution cannot be extended to the last of the temporary contracts signed. Compensation for termination of the last temporary contract must be deducted from the corresponding unfair dismissal in order to avoid duplication, as the decision of cessation taken by the employer it is unique and must not be accompanied by a sum of compensation.

Temporary hiring in fraud of Law

Conversion of the temporary contract into an indefinite contract due to fraud of law

They are considered concluded in fraud of law, the succession of temporary contracts.
The use of several and successive contracts of temporary contracts hiding an indefinite labor need.
There is no presumption of fraud of law. It must be alleged by the worker.

Assumptions

Fraud of law in any of the contracts of the chain:

If one of the temporary contracts has been concluded without cause, the chain is vitiated, and the relationship is understood to be indefinite as long as the essential unity of the employment relationship remains because there is no solution of continuity.

Fraud of law in the whole chain

The existence of fraud of law can be extracted from the contractual series if it shows that a result of prohibited temporality is pursued.

Effects

The contract is considered indefinite full-time;
Seniority in the company dates back to the first of the temporary contracts;
for the calculation of compensation for unfair dismissal, the following rules are taken into account:

all the time worked is taken into account.
the amount received by the worker for the termination of the last temporary relationship must be deducted from the compensation, but not those corresponding to the termination of the previous temporary contracts.
compensation higher than the legal one recognized in the applicable collective agreement does not apply.

No compensation

Suppose you have been signing several temporary contracts with an employee, so when you want to do without him, he sues you for unfair dismissal. Do you know that the final compensation can be quite expensive?

Temporary, temporary and construction contracts include the obligation to compensate for their purpose. When the worker’s demand is made requesting that the termination of the last contract be classified as unfair dismissal, it turns out that the seniority for the calculation goes back to the first contract, with the addition that the company has also paid compensation in each settlement.

Is it possible to deduct from the severance pay the total amount already paid as compensation for previous temporary contract decisions?

Concatenated

An employee has collaborated with your company through several temporary contracts, since September 2, 2014. The last of these contracts ended on November 30, 2017, at which time the employee sues you for unfair dismissal believing his hiring made in fraud of law. According to the employee, the termination communicated on 30 November meant an unfair dismissal entitled to the corresponding compensation.

Amount! As the employee also wants to establish a seniority as of September 2, 2014, it turns out that the amount due is 7,300 euros. Since the employee began to collaborate with you, he had received in the settlements relating to the expired temporary contracts a total amount of 1,000 euros in compensation, not counting that relating to the last contract signed.

Jurisprudence

In principle, it may seem logical to you to opt for compensation for the termination of temporary contracts with severance pay. However, it can finally be concluded that this option is not possible with previous temporary contracts. In this way, it could only compensate for the compensation corresponding to the termination of the last temporary contract.

This is based on two arguments: for there to be compensation of debts it is necessary that they have expired, and that, in addition, they are enforceable. And here it happened that the amounts paid at the end of each temporary contract were paid at the time within operations (the same contracts) carried out in fraud of law. That is why they could not generate any type of debt of the worker in favor of the company … and with no debt, there could be no compensation either.

But this solution cannot be extended to the last temporary contract against which the worker has claimed the inadmissibility of the dismissal. Once the unfair dismissal has been declared, the payment of the severance pay corresponds and not that relating to the termination of the temporary contract. Therefore, the compensation paid for the termination of the temporary contract should be deducted from that corresponding to the unfair dismissal in order to avoid duplication.

Superior compensation

It is not a debtor. The above criterion is important: this will obviously mean raising the compensation for these cases to more than 33 days of salary per year of service.

Your employee will receive at the end 8,300 euros of compensation, 7,300 of them related to the 33 days, and 1,000 for the joint compensation of each temporary contract signed except the last one. Therefore, you will get 1,000 euros more than you would have received if you had been fixed in staff.

Often, after several temporary contracts, a worker makes a claim for dismissal when the last contract is terminated. If it turns out that the temporary relationship maintained until that moment is qualified as fraudulent by the concatenation of contracts, the termination is qualified as unfair dismissal and, as you have seen, the company can be very harmed.

If the concatenation of temporary contracts is fraudulent, the employee will receive compensation for the unfair dismissal, plus that received at the end of each temporary contract, except for the one corresponding to the last contract. Thus, it will charge more compensation than the fixed in template.

If you have any questions about these assumptions and the dismissals, you can contact any of our labor advisors so that we can help you resolve it as soon as possible.