The importance of a good dismissal letter
The dismissal letter is the document through which the employer proceeds to end the employment relationship that unites you with the employee. This document must state the effective date of the same, as well as the cause that justifies it. By delivering the dismissal letter, the worker is allowed to know the business decision.
In practice, we usually find brief, generic or poorly written letters that offer the worker the opportunity to challenge their dismissal with a high possibility of success before a trial. For this reason, complying with labor legislation when drafting the dismissal letter usually offers many guarantees when defending a dismissal and avoids the initiation of legal proceedings.< /p>
What should the termination letter contain?
Given the importance of the measure, labor legislation requires that the dismissal letter contain a minimum content that allows the worker to clearly and unequivocally understand the causes that have led the company to make the decision to terminate your employment contract.
It is very important that the dismissal letter be written down and that the worker be notified by a means of communication that leaves reliable proof of its reception or sending, that is, we recommend avoiding means such as email or WhatsApp to notify a dismissal letter.
Secondly, the letter must set out 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. In the words of the Supreme Court in its Judgment of December 9, 1998, “although a detailed description of the same [facts] is not required, it does require that the written communication provide the worker with clear, sufficient knowledge and unequivocal description of the facts that are imputed to him so that, understanding without rational doubts the scope of those, he can challenge the business decision and prepare the means of evidence that he deems appropriate for his defense and this purpose is not fulfilled, when The aforementioned communication only contains generic and indeterminate accusations that seriously disturb that defense and violate the principle of equality of parties by constituting, ultimately, that ambiguity an advantageous position that the company can take advantage of in its opposition to the worker’s claim.” .
It must be taken into account that at the time of notifying the dismissal letter it is not necessary for the employer to prove the facts that he alleges in the termination letter, rather, the proof of the same will have to be done before the Judge of the Social Court in the event that the worker challenges the dismissal.
Last but not least, the applicable collective agreement can expand the content and requirements of the dismissal letter indicated in the Workers’ Statute, for example the signature of two witnesses or the presence of a legal representative at the time of delivery of the dismissal letter.
Also, say that the content of the letter will vary depending on the modality of it and if the causes exposed are disciplinary or objective, and must refer to the collective agreement and internal regulations from the company to justify in more detail the causes set forth in the dismissal letter.
What is the minimum content of a dismissal letter?
The minimum information, grosso modo, that the extinctive epistle must contain is the following:
- The clear, concrete, precise and unequivocal description that allows to know the causes or facts that motivate the termination of the worker’s contract.
- The effective date of the termination measure as well as the date of the dismissal letter. Whether the notice period elapses or not, the dismissal letter must be dated and contain the effective date of termination of the employment relationship. The justification for the indication of the effective date of the dismissal has its raison d’être, in the need to establish the ten a quo, that is, the moment from which the 20-day period will begin to count to file a claim before corporate jurisdiction. In addition, it marks the moment in which the worker is legally unemployed.
In the event of a disciplinary dismissal it will be necessary to specify the date on which the events that justify the dismissal occurred, as well as to describe the facts precisely and clearly constitutive of being classified as a very serious offense.
On the other hand, in an objective dismissal the facts must be limited to the description of the causes that can justify the objectivity of the dismissal; economic losses, decrease in sales, organizational changes, production changes or technical changes that justify the amortization of the job that the company intends to do without.
Finally, it should be known that, both in a disciplinary dismissal and in an objective dismissal, the letter will delimit and determine the facts that will be able to be discussed and proven in a act of subsequent judgment. Therefore, what is not exposed or said in the dismissal letter, cannot be alleged or indicated later as justification for the dismissal in an act of trial.
Can the company annul the dismissal?
It should be known that once the dismissal has been made and the effective date has passed, the employer cannot annul it, but he can redo a dismissal letter changing the effective date.
In disciplinary dismissal and if the dismissal letter does not meet the previously indicated requirements, it is possible to correct the mistakes made and carry out a new dismissal, as long as it is done within 20 calendar days following the date of the first dismissal. The rectification of the same will entail the payment of the wages accrued from the first dismissal to the date of effects of the second dismissal, as well as the registration in Social Security of the worker during this period. However, such rectification does not lead to nullify the first dismissal, but rather to correct the formal defects that the first dismissal may lack.
Once the worker has submitted the conciliation form to the Mediation, Arbitration and Conciliation Service (SMAC), the company will not be able to rectify.
From this derives the importance of a good dismissal letter and it is always recommended to be legally advised for its drafting, avoiding committing irremediable defects that can cause great economic damages against our company
11/09/2019
