Aspectos esenciales del período de prueba : formalización, duración y extincióntransformación y tendencias de una institución clásica

Abstract

Doctoral Memory provides an updated and useful vision for the legal operator of an institution, trial period, whose knowledge is not exhausted in their legal regulation, to define the complement of collective negotiation, in its various fields and, especially, the deep knowledge of our jurisprudence, which responds, while participates from the process of transformation of this figure. By matching this institution in the proper gear of the labor relations, and within them, in the most complex content innumerable problems of articulation appear, I have tried to systematically identify and order, to provide the updated response of our Courts, at the same time it was encouraging the debate on issues, that in some way, they have a clear and definitive answer. From this point of view, and at the expense of the doctrinal and historicist approach, I have tried to provide an accurate view of the jurisprudential framework and, to a lesser extent, the analysis result of the conventional regulation in those areas where its intervention has shown uniform. To do this, after the required analysis of the legal sources, I've handled a lot of references ("classical" treatises, monographs, doctrinal articles, comments on the Internet, blogs, etc.) from which I have gained a broad view of the object of our study, that I have tried to reach with an updated jurisprudential analysis and thematically structured, without hiding the differences I found between different courts, on the one hand, and between them and certain doctrinal positions, on the other, it has also struck me as the most rewarding. The conclusions of this work, have been exposed, not only from a systematic analysis of the legal response, conventional and judicial, but from the field of reflection and rethinking, which, I believe, has to be made of basic issues. Nevertheless, the best evidence is that the legal regulation of the trial period, contained, almost completely, in a single precept (Art. 14 ET), it has proved insufficient to respond to the many and changing questions that appear around the analyzed figure, as made by the legislator to ensure an institution, for optional inclusion in the employment contract, formalistic in their establishment and extremely flexible in their extinction, while delegating collective negotiators by establishing maximum duration, they have wasted, in my opinión, the ability to adjust, in this area, the legitimate interests of employers and employees, removing those clauses that, introduced by sheer inertia, indeed limit workers� rights, to those who are maintained for too long, with the uncertainty represented by the lack of requirements for the termination of their contracts. This brief regulation, which also, fits with difficulty in certain sectors of the system and also fits in with certain legal arrangements, has strengthened the roles of our Courts, real authentic defining of the content and limits of the trial period, both in the ordinary field and in the constitutional context, appreciating, moreover, in further years, a growing interest in knowledge and application of Community rules and international law which supply gaps in our domestic system, following the regulation of the new permanent contract to support entrepreneurs, which has now been returned to a classic institution in constant transformation. In this global context, the abusive use of the trial period, by the theoretical purpose, tries to be corrected by our courts, by establishing principles and applicable rules which prevent the employer to come to the probation institution, as a pure instrument to withdraw, without any consequences, of the contractual relationship or, at a higher level of breach, outsmarting the rules that the fundamental rights require in any extinguishment act being, accurately, the discontinuance moment, which almost, attracts judicial intervention.