Unemployment benefit and termination of work in another company during voluntary leave

The TS declares that when the contract is terminated during the trial period, for the recognition of the contributory unemployment benefit it is required that at least 3 months have elapsed since the termination of the previous employment relationship. This requirement is not required, on the contrary, when the cessation of the previous relationship takes place by voluntary leave, without having completed its duration, since the contract has not been extinguished but is suspended.

The worker, on a voluntary leave of absence for a period of 2 years from 10-8-2016, signs an indefinite contract with another company on 1-9-2016, establishing a 6-month trial period. On 4-11-2016, the company resolves the contract so the worker requests the contributory benefit for unemployment. The public employment service denies the benefit because it considers that the worker was not in a legal situation of unemployment since the employment relationship was extinguished during the trial period at the employer’s request, without the expiration of a period of 3 months from the termination of employment. his previous employment relationship.

The worker files an unemployment claim that is dismissed both in the first instance and in the plea. For this reason, it appeals in cassation for the unification of doctrine, arguing that the termination of the contract due to the employer’s withdrawal during the probationary period fits into the legal situation of unemployment derived from the termination due to causes beyond the control of the worker.

The Chamber notes that the LGSS reflects the legal situation of unemployment of workers whose employment relationship is terminated “by termination of the employment relationship during the trial period at the request of the employer, provided that the termination of the previous employment relationship had been due to any of the cases contemplated in this section or a period of three months has elapsed since said termination. ” For the TS, this provision is not applicable to the factual event since, despite the termination of the contract during the trial period, the assumption regarding the termination of the previous employment relationship does not apply. That link is suspended by voluntary leave, and the worker can not be required to request re-entry into the company given that its duration has not ended.

It considers, on the contrary, that the worker is in real unemployment due to the cessation in the second company, being applicable the art.267.1.a.3º relative to the cessation occurred at the employer’s will.

STS Room 4th of March 5, 2019. EDJ 2019/544198