Post by account_disabled on Mar 5, 2024 0:34:52 GMT -5
The Superior Court of Justice of the Canary Islands rules that the worker's preferential right to re-entry has not been violated because the position offered by the company on LinkedIn did not belong to the era for his professional category.
The Superior Court of Justice of the Canary Islands has ratified the rejection of a worker's request for reinstatement to his job after a voluntary leave of absence . The Chamber Fax Lists considers that, just as the ruling handed down by the labor court and which the worker appealed, reasoned, the position that the employer offered on the LinkedIn platform was not a position in the actor's category as it belonged to another level, developed different tasks and receive a higher salary.
Therefore, the employee's right , included in art. 46, section 5, of the Workers' Statute : "The worker on voluntary leave retains only a preferential right to reinstatement in vacancies of the same or similar category to his that exist or occur in the company", has not been violated .
The actor, who had been providing services to the defendant since 2007 with an indefinite contract and with the professional category of salesperson, holding the position of Regional Sales Manager of Fuerteventura, Lanzarote and La Palma (level 5), requested a leave of absence in 2018. one year volunteer . The company responded to this request, granting the actor the period of leave from March 2018 to March 2019.
Before the end of said period, in January 2019, the worker requested his reinstatement, however the company informed him that it could not accommodate that request due to the lack of a vacancy within his professional category, since the actor's job was covered through permanent contract in June 2018.
In 2021, the company offered through the social network LinkedIn the position of Regional Distribution Manager in the Nielsen regions of area 2 (Levante) and area 7 (Canary Islands), that is, a position that involves the functional management of other positions such as the one that the actor had been covering . The vacancy was filled by a female candidate.
The actor presented a conciliation document to the SEMAC and, once the mandatory conciliation act was held, it concluded with the result of “attempted without effect.” Therefore, the worker proceeded to file a lawsuit against the company to claim rights-amount, requesting his reinstatement, after the leave, to the job offered by the company on LinkedIn, as well as the payment of the corresponding salaries from the date of presentation of the conciliation ballot.
The Social Court No. 3 of Arrecife dismissed the claim when it was considered proven that the job position to which the plaintiff intended to be reinstated was that of Regional Distribution Manager in the Nielsen regions of area 2 (Levante) and area 7 (Canary Islands). ) with a level 5 A, while the professional category held by the plaintiff was Sales Manager, a lower level than that offered on the social network in 2021.
Likewise, the lower court ruling understood that there were no vacancies of the same or similar category to that held by the plaintiff at the time of the request , after analyzing the tests carried out in the procedure. It was highlighted that the position offered presented notable differences with the one held by the actor, since it involved the management and direction of two commercial areas, with a work center in Madrid and a significantly higher salary level. Furthermore, it was considered proven that since February 2021, all the hiring made by the defendant company for the group to which the plaintiff belonged had been for positions other than Regional Sales Manager and geographic areas other than the Canary Islands.
Therefore, based on the applicable jurisprudential doctrine , the lower court ruling resolved that the potential or expectant right of the worker on voluntary leave could only be exercised immediately when his or her same job, or another similar or equivalent one, was available in the company, which did not happen in the specific case .
The Superior Court of Justice of the Canary Islands has ratified the rejection of a worker's request for reinstatement to his job after a voluntary leave of absence . The Chamber Fax Lists considers that, just as the ruling handed down by the labor court and which the worker appealed, reasoned, the position that the employer offered on the LinkedIn platform was not a position in the actor's category as it belonged to another level, developed different tasks and receive a higher salary.
Therefore, the employee's right , included in art. 46, section 5, of the Workers' Statute : "The worker on voluntary leave retains only a preferential right to reinstatement in vacancies of the same or similar category to his that exist or occur in the company", has not been violated .
The actor, who had been providing services to the defendant since 2007 with an indefinite contract and with the professional category of salesperson, holding the position of Regional Sales Manager of Fuerteventura, Lanzarote and La Palma (level 5), requested a leave of absence in 2018. one year volunteer . The company responded to this request, granting the actor the period of leave from March 2018 to March 2019.
Before the end of said period, in January 2019, the worker requested his reinstatement, however the company informed him that it could not accommodate that request due to the lack of a vacancy within his professional category, since the actor's job was covered through permanent contract in June 2018.
In 2021, the company offered through the social network LinkedIn the position of Regional Distribution Manager in the Nielsen regions of area 2 (Levante) and area 7 (Canary Islands), that is, a position that involves the functional management of other positions such as the one that the actor had been covering . The vacancy was filled by a female candidate.
The actor presented a conciliation document to the SEMAC and, once the mandatory conciliation act was held, it concluded with the result of “attempted without effect.” Therefore, the worker proceeded to file a lawsuit against the company to claim rights-amount, requesting his reinstatement, after the leave, to the job offered by the company on LinkedIn, as well as the payment of the corresponding salaries from the date of presentation of the conciliation ballot.
The Social Court No. 3 of Arrecife dismissed the claim when it was considered proven that the job position to which the plaintiff intended to be reinstated was that of Regional Distribution Manager in the Nielsen regions of area 2 (Levante) and area 7 (Canary Islands). ) with a level 5 A, while the professional category held by the plaintiff was Sales Manager, a lower level than that offered on the social network in 2021.
Likewise, the lower court ruling understood that there were no vacancies of the same or similar category to that held by the plaintiff at the time of the request , after analyzing the tests carried out in the procedure. It was highlighted that the position offered presented notable differences with the one held by the actor, since it involved the management and direction of two commercial areas, with a work center in Madrid and a significantly higher salary level. Furthermore, it was considered proven that since February 2021, all the hiring made by the defendant company for the group to which the plaintiff belonged had been for positions other than Regional Sales Manager and geographic areas other than the Canary Islands.
Therefore, based on the applicable jurisprudential doctrine , the lower court ruling resolved that the potential or expectant right of the worker on voluntary leave could only be exercised immediately when his or her same job, or another similar or equivalent one, was available in the company, which did not happen in the specific case .