The Supreme Court has determined that unused vacation days must be counted when determining whether the legally required three-month period between a voluntary leave and a probationary dismissal is reached. Contrary to what the State Public Employment Service (SEPE) defended, the High Court establishes an integrated interpretation of the law, determining that the legal situation of unemployment arises only after exhausting said paid vacation period.
To understand the case, on July 14, 2021, the worker voluntarily left the company where he had been working continuously for eight years. Days later, on July 19, 2021, he signed a new contract with another company. However, on October 11, 2021, this second company terminated the employment relationship arguing that it had not passed the trial period. After this termination, the company quoted him a total of 92 days, of which 7 corresponded to vacation days not taken.
After the dismissal, the affected person requested contributory unemployment benefits (unemployment), but the SEPE denied it based on article 267.1.a) 7 of the General Social Security Law (LGSS). That is, they argued that not three months had passed between the termination of their previous contract and the termination of the second contract during the trial period at the employer’s request.
The worker demands the resolution of the SEPE
Not satisfied with the SEPE’s decision, the man filed a claim through the courts and his claim was upheld by the Social Court number 3 of A Coruña. This court recognized his right to receive unemployment, considering that the 7 days of vacation not taken had to be added to the 85 days of effective work (thus reaching 92 days), so, applying the most beneficial interpretation, the three-month period required by law was met.
The SEPE, in disagreement, appealed the sentence and presented an appeal. This time, the Superior Court of Justice of Galicia agreed with him, revoking the worker’s right to unemployment. This court argued that the three-month period should be strictly measured between the termination dates of the contracts and rejected that the contribution period for untaken vacations extended said period. At this point, the employee did not give up and filed an appeal for the unification of doctrine before the Supreme Court.
The Supreme Court agrees: vacations not taken are counted
The Supreme Court, first of all, clarified that the purpose of requiring the three-month period (collected in article 267.1 a) 7 of the LGSS) is to prevent fraud, specifically to prevent a worker from obtaining the right to unemployment (which he had lost by voluntarily leaving a job) by taking advantage of being hired briefly in a second job.
The High Court recognizes that, looking at the dates in isolation, there were a few days left to reach three months. However, it emphasizes that it is mandatory to make an integrated and harmonious interpretation of the law, connecting this precept with article 268.3 of the LGSS. This article expressly dictates that when the worker has paid annual vacation days not taken before the end of his contract, the legal situation of unemployment and the birth of the right to collect benefits does not occur on the day of termination, but once that vacation period has elapsed.
Therefore, extrapolating to the case, the worker’s legal unemployment situation did not begin on October 11 (date of dismissal in the trial period), but rather materialized once the 7 days corresponding to his paid vacation had elapsed. Doing the legal calculation in this way, at the time the unemployment situation officially occurred, the three-month period required since his voluntary resignation on July 14 had already been exceeded.
In this way, the Supreme Court upheld the worker’s appeal and confirmed his right to receive unemployment benefits. A ruling that reflects the importance of carefully reviewing the date on which the legal unemployment situation arises when you have vacation days pending enjoyment.