The Administrative Litigation Chamber of the Superior Court of Justice of the Canary Islands (TSJC) has agreed with the Santa Cruz de Tenerife City Council in its decision to impose a fine of 30,001 euros on the company Acciona, for not carrying out the work committed due to lack of of personal.
This company is in charge of the maintenance, conservation, supply and installation service for urban furniture in Santa Cruz de Tenerife and the sanction is based on the fact that it has not carried out the work with the personal means involved.
Initially, another fine of 30,001 euros was imposed for disobedience to the “express” orders given by the City Council, but it was ruled out in the first instance.
The company appealed the initial sentence, alleging that the right to defense was violated during the processing of the file by denying it the proposed evidence that consisted of the statement of the manager and the person in charge of the company, without being given a reason for it.
The TSJC responds that the testimony of the two employees about facts that are not denied does not constitute a violation of the right of defense nor has it generated defenselessness, since it is a legal matter to assess whether or not there is a breach of contract. The company also rules out that there has been any breach of a serious nature for not having personal means, which is why it has been sentenced, to which the TSJC recalls that at the time they promised to hire two more people out of the 17 collected in the sheet
The concessionaire argued that at no time did it assume that all operators have to be providing service permanently, which would go against their right to rest, vacations, licenses or permits and defends that the breaches have been punctual.
However, the City Council indicates that in reality the staff shortages were detected on one day in July, two in October, every day in November 2018 and more than all of May 2019.
The TSJC now rules that the improvements offered cannot be altered at the will of the contractor, because they are a fundamental element of the contract and that, therefore, the successful bidder must guarantee that all positions are always covered.
APPROVED CONCESSION
The concession was approved on September 26, 2016 after the corresponding contest was called, but two years later the head of the technical control service reported that five workers of the 19 committed had been missing on two specific days and three on another of them. For this reason, the corresponding file for breach of contract was initiated and at the end of 2019 two sanctions of 30,001 euros each were imposed for lack of personnel and another for disobedience to the orders transmitted by the City Council, of which only estimated the first.
