Is it right to dismiss an employee verbally without a letter explaining the reasons and date of termination?
Article 55.1 of the Workers’ Statute clearly states that «the dismissal shall be notified in writing, including the reasons for dismissal and the date in which it will take place.”
Consequently, it is considered as unfair dismissal if the formalities required have not been fulfilled.
Therefore, it is not correct to dismiss an employee verbally. The verbal dismissal is a breach of the written form required for notification of dismissal. In case of legal challenge, verbal dismissal is inadmissible.
The general requirements that apply as valid communication for dismissal are:
a) Written communication.
What if the employee refuses to sign the dismissal letter? Is it valid to give notice through a dismissal letter via telegram, fax, registered fax, etc.?
Yes, it is valid. The employee’s refusal to receive the dismissal letter (through explicit refusal of communication, unknown whereabouts or neglecting acknowledgment receipt) exempts the company from any liability, as the employer acted with reasonable diligence in attempting to give proper notice of the dismissal. Therefore, the employee will be dismissed within 20 working days (expiry date provided in art. 59.3 ET).
Once proven that the employer has communicated the dismissal to the correct postal address, if the employee neglects the notice and refuses to collect the letter, he is deliberately preventing the dismissal to take place.
Therefore, if the employer has notified of the dismissal through a written letter and has tried to inform the employee in a suitable way, the rebellious behaviour by the worker, who is deliberately refusing to receive and acknowledge the contents of the letter, cannot be used as a reason for lack of communication.
Consequently, it is recommended to sign the dismissal letter. In case of doubt, sign and date the letter, writing the term «non-compliant» on it. Signing the letter of dismissal is merely as a means of notification, but it does not imply that you accept the facts contained in the letter.
b) Facts of dismissal.
The Labour Chamber of the Supreme Court synthesizes the Judgment of October 3, 1988, «although a detailed description of the facts is not imposed, it is required to provide the worker with a written communication stating clearly the facts alleged against him and for which his dismissal is fair; if the worker does not agree with this decision, he may take legal action and prepare the evidence he deems appropriate for his defence.»
c) Dismissal date.
Article 55 of the Workers’ Statute establishes the following:
The dismissal will take place within 20 working days, counting from the day following the dismissal. The employer shall pay the employee the accrued salaries and keep him registered in Social Security.
The dismissal will be classified as fair, unfair or null. The dismissal will be considered as fair when the alleged infringement is credited by the employer in the written communication; otherwise, it will be considered as unfair dismissal.
Therefore, if the date of termination is not included in the dismissal letter, it will be considered as unfair dismissal.
Must the employee prove that he was been verbally dismissed?
Yes, an employee who claims to have been verbally dismissed must present evidence of such accusation. In these cases, and to have proof of the verbal dismissal, the worker may speak or write to the employer.
Possible ways in which to prove verbal dismissal:
Take witnesses to the workplace to require the employer to ratify the dismissal in their presence. Subsequently, the witness must attend the trial to testify what he witnessed. (TS unif doctrina 19-12-11, 5; TSJ País Vasco 16-5-00).
Send a telegram, fax, registered fax, etc. immediately after dismissal so the company can confirm whether they go on with the verbal dismissal and, if so, the reasons for this decision. With this confirmation you obtain proof of the verbal dismissal, which took place without the presence of witnesses, and can be used as evidence in trial.
Finally, the employee must demonstrate a clear and immediate reaction against the verbal dismissal, and merely filling out a conciliation form will not be enough, as in some cases the employee may have abandoned employment and is later trying to hide this fact by alleging dismissal.