One of the main innovations of the last labor reform was the introduction of indefinite-term contracts for seasonal work in companies and sectors in which they had never been used before. However, the new regulation has not resolved certain doubts, such as, for example, how to act in the event a worker fails to respond to the call to resume work.
When a worker has an indefinite-term contract for seasonal work, there may be a number reasons why he/she fails to respond when called to return to work: the written notice did not arrive because the worker has changed address and did not inform the company, the call arrived at the worker’s address, however the worker has been in his/her country of origin for a long period of time, or the call arrived, but the worker is providing services to another company. All these reasons are the result of common situations for not attending the call to resume work by a worker with this type of contract. But how should the company act in these cases?
The employer has two options: to consider the employee as having resigned or to penalize him/her in accordance with the applicable collective bargaining agreement, including dismissal, for unjustified absence.
The two solutions are very different; the first one implies voluntary resignation, whereas the second requires waiting and sending further notification to the worker.
Some collective bargaining agreements have qualified the failure to attend the call as resignation. However, court judgments vary, as some courts have accepted the figure of resignation, even though the collective bargaining agreement does not provide for it and others have rejected resignation, even when the collective bargaining agreement provides for it. The latter consider that resignation, associated in this case to the failure to return to work after being called “requires indisputable intention, without giving rise to reasonable doubt, that the employer is aware of said intention: written or verbal signs that directly convey the explicit intention of the interested party; or indirectly: different behavior, which clearly and categorically proves that the employee wishes to terminate his/her employment relationship” (judgment by the High Court of Catalonia of July 25, 2022).
More than a year has passed since the last labor reform, which resulted in many companies changing their hiring systems. One of these changes has undoubtedly been the introduction of indefinite-term contracts for seasonal work in many companies and sectors where they had never been used before.
The preference for the use of this type of contract, as a tool to deal with temporary employment, was accompanied by a new regulation of the contract which, although being more extensive than the previous one, still left many questions unanswered as to how to use them.
The current regulation has not resolved either this or other important issues that had already been raised for this type of contract, such as the possibility of signing a part-time indefinite-term contract when the collective bargaining agreement does not expressly provide for it, the need or not to resort to the procedure for suspension of contracts when the call is not going to take place on the usual dates due to a temporary reduction in the volume of work or the minimum interruption between calls for an indefinite-term contract for seasonal work to be considered as an ordinary indefinite-term contract, just to mention a few.
We will have to wait for the courts’ interpretations in this matter, especially if the Supreme Court decides to issue a ruling to unify the different criteria of certain courts.
