The Social Chamber of the High Court of Justice of the Canary Islands (TSJC) has dismissed the appeal filed by the San Bartolomé de Tirajana City Council against the judgment issued by the Social Court No. 5 of Las Palmas de Gran Canaria, upholding the local administration's obligation to pay the corresponding severance pay to a worker with a long history of employment with the council as a permanent non-tenured employee. The court ruling resolves the legal dispute surrounding the application of Law 20/2021 on reducing temporary employment in the public sector when the termination of the employment relationship results from failing to pass or being excluded from the extraordinary processes for stabilizing permanent positions.
The background of the case dates back to the plaintiff's professional career, as she had been employed by the municipal corporation since August 2, 2004, as an administrative assistant, receiving salaries corresponding to higher administrative duties by virtue of previous court rulings. Pursuant to Law 20/2021, the City Council approved an extraordinary Public Employment Offer in May 2022 for the stabilization of structural temporary positions, subsequently announcing in December of that year the rules for the competitive examination process to fill positions occupied continuously for at least three years prior to December 2020.
The competitive examination (the selection process) is not the result of a whim of the San Bartolomé de Tirajana City Council, but rather a legal obligation at the national and European levels. It is directly motivated by Law 20/2021, of December 28, on urgent measures for the reduction of temporary employment in the public sector. This law was passed at the insistence of the European Union (through the commitments of the Recovery Plan) to compel all Spanish public administrations to drastically reduce the high rate of temporary and interim employees by opening up permanent positions, which had been occupied precariously or continuously for years, to open competition. In compliance with this national law, the City Council had to approve an extraordinary Public Employment Offer (OPE) for stabilization, in order to hold open competitive examinations for those positions, such as the one held by the employee since 2004, which were filled on a temporary basis. This led to the selection process and her subsequent dismissal for failing to pass it.
The employee submitted her application to participate in the stabilization process on time and in the proper format. However, by resolution of the Department of the Presidency issued at the end of November 2023, she was excluded from the selection process for failing to provide the qualification required in the terms and conditions—specifically, the Compulsory Secondary Education certificate or equivalent for the administrative assistant category—or proof of payment of the corresponding fees. As a direct consequence of not passing or successfully completing this extraordinary selection process, the city council agreed in March 2024 to terminate her employment contract as a permanent non-tenured employee, effective March 31, 2024, only recognizing the payment of outstanding vacation pay.
Following the termination of her contract, the employee filed a lawsuit claiming the financial compensation stipulated in Article 2.6 of Law 20/2021, designed for temporary civil servants or contract workers whose employment with the Administration ends due to their failure to pass the stabilization processes. The court of first instance fully upheld the claim, prompting the San Bartolomé de Tirajana City Council to appeal to the High Court of Justice of the Canary Islands (TSJC). The City Council argued that the employee had not actually participated in the selection process, having been previously excluded for lacking the required documentation, thus exempting the administration—in its view—from paying the compensation.
The Social Chamber, under the opinion of Judge Ramón Toubes Torres, has dismantled the city council's arguments, relying on the legal precedent recently established by the regional court and the Supreme Court. The judges concluded that the plaintiff did participate in the selection process, having formally submitted her application in a timely manner, and that her subsequent administrative exclusion for lacking the required qualifications does not invalidate her active intent to compete for permanent employment, especially since she appealed the exclusion decision through administrative channels.
The High Court of Justice of Catalonia (TSJC) reiterates that the termination of an indefinite-term, non-permanent employee's contract due to the regular filling of their position—or the implementation of public employment stabilization processes—invariably entails the right to compensation based on established case law, equivalent to twenty days of fixed salary per year of service, up to the legally established limit. Rejecting the arguments presented by the municipal representatives, the high court upholds the lower court's ruling in its entirety and orders the San Bartolomé de Tirajana City Council to pay the court costs of the appeal, setting the fees for the employee's lawyer at 800 euros.
