In case of voluntary leave, reincorporation is not applicable when the position is published in a private online job exchange without detailed specifications. The company does not fail to fulfil its obligations because the offer of employment is temporary and limited.
Judgment delivered by the Supreme Court on 28 November 2017 [JUR\2017\313723]
In the case in question a worker who holds the category of administrative assistant and who had been providing her services as a management secretary is in a situation of voluntary leave.
The employing company did not offer her a vacancy for her effective reincorporation in the company, after requesting the worker to be reinstated to her job.
The Labour Court of Madrid and the High Court of Justice of Madrid estimated the employee’s claim for having filled a vacancy in the accounting department of the company, instead of having offered it to the worker.
Notwithstanding the above, while it is true that the company hired another worker to fill the vacancy, it should be noted that said vacancy was published in an online job exchange called “infojobs” without any description regarding the required qualification and conditions of employment. In addition, the worker who covered for said position was hired by a fixed-term contract –work or service– and part-time, which does not meet the jurisprudential criterion of suitability in vacancies, since the worker had a permanent full time contract.
However, and in order to resolve the case, the Supreme Court considers that the worker’s reincorporation is conditional to the existence of “vacancies of the same or similar category”. This is an expression that involves a legal concept of undeniable indeterminacy and interpretative difficulty, but in any case points to a “symmetry”, or at least “equivalence”, which is completely absent from the place left on leave (indefinitely; and full-time) and the cover after the application for reincorporation (temporary for work / service, and part-time).
Additionally, it seems impossible to apply to the employing company the doctrine of own acts (which means the link of the author of a declaration of will to the objective sense of the same and the impossibility of adopting afterwards a behavior that contradicts that), because it does not know the content of the vacancy offered; there is no requirement to indicate if the vacancy it is fixed-term and part-time.
In effect, we are not in the presence of a contractual offer – not even to a specific and determined person, neither an offer of “Administrative Assistant Personnel Dept.” to which the advertising company does not indicate any quality in order of its working day, temporality or salary.
Therefore, it cannot be said that the absence of any temporary reference in the advertisement implied an offer of indefinite and full-time work, which would be similar to the position that the worker had been occupying.