Dismissal during the trial period is unfair if its duration is not specified in the contract

Social room in Supreme Court declared inadmissible dismissal workers from the company Insignia Rehabilitación y Arquitectura SL, which decided to terminate the worker’s contract, stating that she did not exceed the deadline probation.

With the verdict of April 12, the court ruled in the case of Ms. Fermina (fictitious name), who started working in the mentioned company on July 22, 2020. She did so with a fixed-term contract, as the head of the administration, which would last until July 16, 2021. and for which he would receive 30,040 euros.

On November 23, 2020, seven months before the end of her work, Fermina was fired by the management. The managers of the company informed her that she did not pass the test and that they do not count on her for future work. Then the plaintiff began the legal journey that led her to the Supreme Court, where she filed an appeal against the previous judgments of the High Court of Justice of the Basque Country.

Upon reviewing the contract, the judges saw that no probationary period was specified on any sheet. The document limited itself to referring to what was determined by the collective agreement, where only maximum terms were determinedwhich range from 15 days to six months, depending on the professional category.

A mistake already made by another company, known for firing an employee who became pregnant during the said trial period and reporting her temporary incapacity. In this case, justice ruled in favor of the woman, considering that written determination of the duration of the exam is the minimum right of the employee». In the verdict, the judge reminded that Article 14.1 worker status imposes a formal requirement: agree on a trial period in writing. Otherwise, it would create “serious uncertainty for the worker because he does not know at what point, within the six-month period, the probationary period ended.” There is no reason to understand that the contracted duration is six months,” the ruling document states. And this same argument is the one that Judge-Rapporteur Juan Molins García-Atance is holding on to in order to declare Fermina’s exemption “inadmissible”.

violation of rights

For all of the above, the misdemeanor judge determines that “the worker’s right was violated […] For this reason, since the probationary period is not valid, the termination of the employment contract is an unfair termination,” he rejects.

As a result of this penalty, the company must “immediately” reinstate the employee – by paying the salary not received until the date of termination of the contract – or compensate her for 33 days’ salary per year worked, which would amount to 1,131 in her purse .65 euros.