The Superior Court of Justice of Galicia has dismissed the appeal filed by the State Public Employment Service (SEPE) and has Allowed to a woman to collect the unemployment benefit (unemployment) after being fired from a temporary job that she took while she was left over due to the care of her child in another company. The Sepe denied the help because he understood that the unemployment situation was voluntary and could return to the first company, but justice has not proved him right.
As stated in the March 2024 ruling, this woman requested in July 2023 to the provision to the SEPE, after expiring her temporary contract. However, the SEPE denied its application because its situation was of leave due to children since October 28, 2022, so it was not included “in any of the cases in which the general regime of Social Security, or A special regime protects unemployment contingency. ”
This, not complying, filed an administrative claim, which was also denied in August 2023, since it was not accredited “the involuntariness in the unemployment situation since it had previously had requested the re -entry in the law firm in which it is in leave for son’s care ”, since a year had not yet spent a year since his concession and, therefore, He had the right to return to the same since he had been occupying.
Justice recognizes unemployment despite being leave
The worker, after this second denial, decided to claim and file a claim, which was estimated by the Social Court number 6 of A Coruña. This court declared that His fundamental right to equality and non -discrimination had been violated And he condemned Sepe to recognize and pay women the unemployment benefit, “in the amount and regulatory form.”
After this sentence, it was the Public State Employment Service who decided to claim, and filed an appeal for the Superior Court of Justice of Galicia. In this resource, they defended that the woman was not in legal unemployment, since she could join the first company and did not, which showed that The worker could work when unemployment covers “wanting to work and not being able to do it”.
For the Court, however, this argument could not be accepted, expressing that this worker was in legal situation of unemployment “In response to employment achieved through a temporary work company while he was in leave for the care of his child in another company,” since he had seen said job extinguished due to his will and, in addition, he had accredited that there had not been a glimpse of fraud.
To this they added that the labor legal system “does not prevent the work of a person in a situation of leave for the care of minor, or of the elderly, unless, naturally, if that work involves unfair concurrence with the company.” In addition, they added that This possible second work “is not incompatible with the purpose of care of leave, since it can be a more easily compatible work with carefor its duration, for its day, for its flexibility, for the proximity or for other multiple legitimate reasons, to which the working person surely accesses to cover, at least in part, the economic deficiencies in which it adds it to the leave that, Being suspensive situation, it determines the absence of salary and, regardless of even economic considerations, in the exercise of your personal freedom to stay linked to the labor market. ”
Faced with this, the TSJ of Galicia added that the SEPE intended to deny the unemployment benefit because the worker had the right to re -enter her first company, in which she was of leave, but this would mean “Laminar the right to conciliation of the worker Well, if it does not follow the indications of the managing entity in order to re -enter the company, precisely to continue attending to the care of its child, it would be without unemployment benefits, and if it follows the indications of the managing entity, it should re -enter into the job and the company could not be denied under the sanction of the rejection, which would not access unemployment benefits for being working and would continue to have the difficulties in the care of your child that they had before requesting leave and that with leave precisely pretended to avoid to attend to care. ”
In the last place, they alluded to the fact that most conciliation rights are exercised by women, such as this case, which presented “a constitutional dimension that is specified in the affectation of article 14 of the Spanish Constitution, in relation to the Article 18 (right to privacy and adopt legitimate decisions in the field of personal and family privacy) and with article 39 (family protection, or not marriage, and children, whatever their affiliation) ”, and that was validated in the instance judgment.
Regarding it, the Superior Court of Justice of Galicia concluded that it must be invoked “not only in that procedural projection, also in a substantive projection, since the interpretation given in the instance judgment, which the Chamber assumes, supposes the solution more in accordance with the application and interpretation of the regulations in a gender perspective, which is based on article 4 of Organic Law 3/2007, of March 22, for the effective equality of women and men ”.
So, They dismissed the resource of the SEPE and allowed the woman to collect unemploymenteven if it was in leave due to children’s care. It should be noted that the sentence was not firm and it was possible to submit an appeal for the cassation of doctrine before the Supreme Court.