Should the company communicate dismissals with a letter?
Labor Law
At present, it is very common that in a situation of dismissal of an employee, the company doubts whether the dismissal should be done verbally or through another form of communication, since it is of vital importance that the form of the dismissal is through a letter of dismissal. In this new post we will explain how to do it correctly.
What is the letter of dismissal?
The dismissal letter is the document by which the employer notifies the employee of the dismissal, the date of effect of the dismissal, as well as the cause that justifies the measure, and, on the other hand, it is the way the employee knows the business decision.
Dismissal is the employer's unilateral decision to terminate the employment relationship. Employment law requires that the dismissal letter contain a minimum content so that the employee can clearly understand why he or she is being dismissed.
How should the letter of dismissal be written?
As advised by our employment lawyers, it is important that the decision to terminate is in writing. Article 53 (objective dismissal) and 55 (disciplinary dismissal) of the Workers' Statute require that the dismissal be communicated in writing.
Furthermore, the dismissal must contain a minimum content that allows the worker to understand the causes of the decision, indicating the type of dismissal and the facts that prove the indicated cause.
It is not necessary at this stage for the company to prove, accredit, or indicate the evidence it has of the facts indicated in the letter. This obligation will only have to be made before the judge in the event that the worker contests the dismissal through judicial channels.
Is it essential that the dismissal letter contains the exact date of dismissal?
It is essential that the letter of dismissal contains the exact date of dismissal, since only in this way will the worker be able to know the exact date of his dismissal, and it is the date on which the worker will begin to count the 20 day period for legal claims.
In addition to the date, the letter must delimit and determine the facts to be discussed and proven in a subsequent trial. What is not said in the letter cannot be indicated later as a justification for the dismissal.
How should the dismissal letter be delivered to the worker?
The letter of dismissal will be handed over to the worker. If the worker refuses to sign, it is advisable that there are witnesses who can prove that the letter was intended to be delivered. Usually the worker's legal representative is called to sign the refusal.
From the labour department we advise sending the dismissal letter by bureaufax with acknowledgement of receipt and certification of contents, including via a notary.
The refusal of the worker to receive the letter, despite having been attempted by the company by these means, exempts the company from the obligation of delivery, and will not be considered, despite this, as an unfair dismissal.
Consequently, the refusal to sign does not confer any advantage on the worker. In fact, it may rather be a disadvantage if the employee does not have a copy of it.
How many days will the worker have to appeal the dismissal?
The worker will have 20 days from the date of dismissal to appeal. It is important to take into account the number of days to appeal and to know if the forms of dismissal have been the right ones, since it will depend on it whether the worker has the right to compensation or not.
What will be taken into account when it comes to knowing whether or not the worker is entitled to compensation is whether the dismissal is appropriate or inappropriate, which is what will determine whether or not the worker will receive compensation, depending on the type of contract, and on the length of service in the company.
How long does the worker have to claim a compensation for the dismissal?
It will have a maximum term of 1 year.
Contact us, and our lawyers specializing in labour law will study your specific case.
At Forcam Abogados we have offices in Barcelona, Madrid and Reus.
What is the letter of dismissal?
The dismissal letter is the document by which the employer notifies the employee of the dismissal, the date of effect of the dismissal, as well as the cause that justifies the measure, and, on the other hand, it is the way the employee knows the business decision.
Dismissal is the employer's unilateral decision to terminate the employment relationship. Employment law requires that the dismissal letter contain a minimum content so that the employee can clearly understand why he or she is being dismissed.
How should the letter of dismissal be written?
As advised by our employment lawyers, it is important that the decision to terminate is in writing. Article 53 (objective dismissal) and 55 (disciplinary dismissal) of the Workers' Statute require that the dismissal be communicated in writing.
Furthermore, the dismissal must contain a minimum content that allows the worker to understand the causes of the decision, indicating the type of dismissal and the facts that prove the indicated cause.
It is not necessary at this stage for the company to prove, accredit, or indicate the evidence it has of the facts indicated in the letter. This obligation will only have to be made before the judge in the event that the worker contests the dismissal through judicial channels.
Is it essential that the dismissal letter contains the exact date of dismissal?
It is essential that the letter of dismissal contains the exact date of dismissal, since only in this way will the worker be able to know the exact date of his dismissal, and it is the date on which the worker will begin to count the 20 day period for legal claims.
In addition to the date, the letter must delimit and determine the facts to be discussed and proven in a subsequent trial. What is not said in the letter cannot be indicated later as a justification for the dismissal.
How should the dismissal letter be delivered to the worker?
The letter of dismissal will be handed over to the worker. If the worker refuses to sign, it is advisable that there are witnesses who can prove that the letter was intended to be delivered. Usually the worker's legal representative is called to sign the refusal.
From the labour department we advise sending the dismissal letter by bureaufax with acknowledgement of receipt and certification of contents, including via a notary.
The refusal of the worker to receive the letter, despite having been attempted by the company by these means, exempts the company from the obligation of delivery, and will not be considered, despite this, as an unfair dismissal.
Consequently, the refusal to sign does not confer any advantage on the worker. In fact, it may rather be a disadvantage if the employee does not have a copy of it.
How many days will the worker have to appeal the dismissal?
The worker will have 20 days from the date of dismissal to appeal. It is important to take into account the number of days to appeal and to know if the forms of dismissal have been the right ones, since it will depend on it whether the worker has the right to compensation or not.
What will be taken into account when it comes to knowing whether or not the worker is entitled to compensation is whether the dismissal is appropriate or inappropriate, which is what will determine whether or not the worker will receive compensation, depending on the type of contract, and on the length of service in the company.
How long does the worker have to claim a compensation for the dismissal?
It will have a maximum term of 1 year.
Contact us, and our lawyers specializing in labour law will study your specific case.
At Forcam Abogados we have offices in Barcelona, Madrid and Reus.