Businesses are frequently obligated to give notice of termination to some of their employees. The causes can be diverse.
Causes for giving notice of termination
The disciplinary dismissal
The following contractual breaches are grounds for a disciplinary dismissal: lack of attendance or punctuality at work; misbehaviour or disobedience at work; verbal or physical offenses; transgression of the contractual good faith; decrease in performance; intoxication, drug addiction or discriminatory harassment (Art 54 ET).
The collective dismissal for economic, technical, organization or production causes
According to Art. 51.1 ET, this type of dismissal occurs when, in a period of 90 days, the termination affects at least:
- 10 employees in businesses with less than a hundred employees
- 10% of the number of employees in businesses with between 100 and 300 employees
- 30 employees in businesses with more than 300 employees
- When the termination of the employee contracts affects the entire staff of the business, whenever the number of employees affected is greater than five and when the collective dismissal occurs as a result of the complete termination of the business activity established by the aforementioned causes.
The objective dismissal for economic, technical, organizational or production causes
This type of dismissal results when the number of dismissals is less than the collective dismissal threshold at certain reference periods (Art 52 c) ET).
For any of these dismissals to be valid, the business must notify the employee of the termination of the employee contract. The employee, however, can refuse to receive the termination letter. In these cases, it is important that the business know how to act and know its obligations so the termination letter can take effect.
Requirements for giving notice of termination to an employee
The dismissal must be communicated in writing to the employee. The notice of termination must record the facts that motivate it and the date that it will take effect (Art 52.1 a) and art. 55.1 ET).
The sender of the communication must be the business owner or an authorized person (TS de 9-03-1990).
The receiver of the communication must be the employee, although it can also be a person that acts on behalf of the employee (TSJ País Vasco 3-04-96).
The communication procedure is not what is important, but can prove that communication was made (TS de 27-09-84). The following methods are effective for providing notice of dismissal or termination of the contract:
- A letter sent through mail and stamped by a post office official and later certified with an acknowledgment receipt (TSJ 10-09-91)
- A telegram (TSJ 3-03-87)
- A notification through a notary in the presence of a neighbour (TSJ Comunidad Valenciana 30-04-96).
Currently, certified fax is the most utilized method for communicating a dismissal (TSJ Castilla-La Mancha 15-12-05; TSJ Cataluña 26-11-12).
Duties of the Employer for the effectiveness of the notification
To be effective, it is sufficient that the employer take reasonable efforts to notify the employee of the termination. Disproportionate and illogical actions will not be demanded of the employer. (TS 12-03-86, EDJ 1910).
Likewise, it is understood that the business has complied with the formal requirements if it uses that can be considered unequivocally adequate for the employee to become aware of the notification.
How to respond to the employee´s refusal to receive the notification
The conduct of the employee not wishing to receive or acknowledge the contents of the termination letter does not refute the existence of theletter (TS de 12-03-86). Similarly, the employee´s denial of receiving the letter by any means (certified letter, telegram, etc.) exonerates the business of all responsibility, given that the business complied with its responsibility of giving notice of termination.
If the business sends a notice of termination for a disciplinary dismissal to the employee´s domicile as the business knows it and the employee had changed his or her domicile without communicating it to the business, the time limit for the disciplinary dismissal does not expire (TS 23-05-90).
Finally, if the employee refuses to sign the termination notice, the notification can be verified with witnesses.
This article is not considered as legal advice