The company terminated an employee’s contract on the basis of redundancy reasons but did not provide a copy of the dismissal letter to the employees’ representatives as required in article 53 of the Statute of Workers (SW).
In view of this situation, the Supreme Court was asked whether failure to communicate the dismissal to the employees’ representatives could be considered a breach of the legal formalities and, consequently, could entail the nullity of the employment termination, as provided under article 122 of the Labour Procedural Law.
The difficulty in determining whether this was the case stems from the fact that article 53 SW states that the company has to provide the employees with a copy of the prior notice, instead of referring to the communication of the dismissal or dismissal letter.
The Supreme Court, following the experts’ interpretation of the referred article, concludes that there is an error in its drafting since there is no legal or logical reason for employees’ representatives to be interested in the prior notice given to an employee when he/she is being dismissed. On the contrary, if provided with a copy of the dismissal letter, employees’ representative will be able to (i) make sure that it complies with the legal formalities i.e. that it sets the cause of the dismissal and informs the employee that the company has put at his/her disposal the statutory severance and what is more important; (ii) to verify the number of employees that are being dismissed and, hence, if the company is avoiding the collective dismissal procedure statutorily provided for these cases.
What this means for you
From now on companies must duly provide employees’ representatives with a copy of dismissal letters (preferably on the same day) in case of individual redundancies otherwise there is a very high risk that the company will be obliged to reinstate him/her in her previous position and to pay him/her the salaries accrued since the termination date if the affected employee challenges the employment termination before the Labour Courts.