Verbal dismissal: How to proceed

There are many occasions in which workers suffer dismissals which, as they lack written communication, constitute an increase in the unrest that any dismissal entails, either because it is not known how to react, or because they are not identifiable as a dismissal itself.

We are facing verbal dismissals which, if identified as such by a Court if challenged by the worker, can be a serious problem for the entrepreneur.

This is so because our legal system requires the dismissal to be in writing, stating in detail the causes of the dismissal and its effective date. If these requirements are not met, the dismissal becomes unfair and the employer will have to choose between:

• Reinstate the worker in his job with the payment of the wages not received from the date of dismissal until the date of reinstatement.

• Compensate the worker with 33 days of salary per year of service.

To reach this point, we must articulate the way to proceed against the verbal communication of the dismissal exercised by the employer and that can be express (“go and don’t come back ”) or tacit (“take a few days off, and stop by next month, see what I have for you”). The tacit formula always seeks a way to dissuade the worker from acting in the face of a dismissal that, obviously, he does not know has occurred.

How to deal with verbal dismissal

The first thing we must be clear about is that we have a period of 20 business days to challenge this verbal dismissal. After that period, the possibility of taking action against the company would expire. That is why an immediate and accurate reaction is essential.

That said, we must prove and prove the effective date of that dismissal so that the company can never claim expiration of the action.

It is important to bear in mind that the Workers Statute establishes as cause for dismissal unjustified absence from work or abandonment of it. That is why it should not be strange for the employer to issue, a few days after the verbal dismissal, disciplinary dismissal letter informing the employee of the absences that, in his opinion, occurred precisely as a result of the verbal dismissal of which he had been subjected.

To avoid the above, we must be fully informed of our lowering from Social Security to check when the company has proceeded to make this verbal dismissal effective.< /p>

For this we can request a working life report electronically. In many Autonomous Communities, SEPE itself informs via SMS about variations in the affiliation system, so it is very useful to have registered this service.

Simultaneously and immediately from the verbal communication, it is necessary to force the company representative to expressly state our situation work.

For this we can use several mechanisms among which the burofax of requirement to the employer stands out. In this communication, the date of shipment and the date of receipt by the company are reliably recorded, as well as the content of the same, in which, once the events that occurred have been described, a specification and conclusion about them is required. : “please tell me the employment situation in which I find myself and, if applicable, inform me about whether my dismissal has occurred and consequently the termination of the employment relationship that united me with the company so that, if so, and in view of my opposition, to proceed in accordance with the law”.

The employer may choose not to answer the burofax, resulting in the absence of a response as indicative evidence that such dismissal has occurred, on the date and in the manner described by part of the worker.

Or, on the contrary, you may answer alleging as many questions as you deem in order to avoid the consequences that said verbal dismissal could cause: “you have refused to receive the letter dismissal that I take advantage of to enclose“, “such a conversation has never taken place and you must report to your job immediately under penalty of disciplinary sanction“, or even “it was You are the one who verbally informed us of your voluntary resignation from the company, for which reason we have proceeded to withdraw you from social security, having terminated the employment relationship with that effective date”.

In any of the cases, the worker may prove the requirement, his employment situation as indicated by the employer, the effective date of dismissal (if confirmed by the company), and opposition to it.

Another of the mechanisms to be used by the worker, which does not exclude the previous one but is complementary to it, would consist of appearing at the workplace with a witness (showing that the partner, brother or a friend is not a good witness), so that in due course they can testify before a judge how the employer denied the employee entry to the center work or how it prevented you from joining your work activity.

Following the guidelines described above, determining that there has been such a dismissal and specifying the effective date of the same, the worker will have 20 business days from the date of the dismissal to file the mandatory Conciliation Ballot before the Mediation, Arbitration and Conciliation Service.

If the company refuses to comply, the worker may sue the company for unfair dismissal before the Social Court in which, once proven that the worker has been verbally dismissed, the unfairness of the dismissal will be determined with all the consequences that this entails.

04/01/2017