Occasionally, a dismissal can be frustrated by not complying with a series of formal requirements. In such cases the labor regulations provide for some options allowing companies to rectify the dismissal and make it valid.

The law and some collective agreements provide for a series of formal requirements for dismissal, whose strict compliance is essential for its successful completion. Even if there could be objective cause or enough disciplinary reason to defend its fairness, it may be adversely affected due to the breach of formalities. We analyze whether it is possible – and, if so, to what extent – to rectify or retract a dismissal that has already been communicated.

First of all, the question arises as to whether the company can directly retract a dismissal that has already been communicated. The answer is that the employer can only retract the dismissal already communicated if it is within the notice period, i.e. before the effective date of the termination. In this way, the Supreme Court has declared that the company can retract its decision to terminate the contract as long as the employment relationship is still in force, which occurs during the notice period prior to the date of effect of the termination, given that “the notice is simply the prior announcement that the contract is going to be terminated soon, but it is only a warning made as required by law to prevent the other from something that will be done” (judgment of the Supreme Court of 7 December 2009, Rec. 210/2009).

As a rule, this possibility will only take place in objective dismissals, in which the law establishes the obligation to comply with fifteen days’ notice, being obliged the employee to reimburse the company the legal compensation, which was made available at the time of the notification of the dismissal, although the , reasoning that enables this option would also apply to a disciplinary dismissal communicated with notice.

Once the date of effects of extinction is effective, such termination date becomes firm s and the employer’s retraction is no longer possible, not even in the act of prior administrative conciliation through an acknowledgement of the inadmissibility, the confluence of wills of the company and the employee being necessary to overrule the termination measure.

With regard to the possibility of remedying the formal defects of a dismissal once the effective date of termination has exceeded, there are up to three possibilities for rectification:

1. Carry out a second dismissal “ad cautelam” while the judicial proceedings of the first one are being processed, with the aim of anticipating a possible declaration of unfairness or nullity of the dismissal

This is a jurisprudential concept and consists of notifying a second dismissal to the employee, totally independent of the first one, which, in order to be valid, would necessarily have to be based on new facts that were not time-barred and not known at the time of the first dismissal.

Thus, after a possible ruling upholding the claim for the first dismissal, reinstatement would be opted for (although this would not be carried out effectively since, let us remember, a second dismissal has taken place), with payment of the processing salaries from the date of the first dismissal until the date of the second. In the event that the worker appealed this second dismissal, a new proceeding would be initiated, and a new trial would be held independent of the previous one.

However, if the first dismissal would be declared fair and it became final, the second dismissal, for obvious reasons, would be ineffective since the employment relationship has already been extinguished.

2. Immediate correction of disciplinary dismissal carried out with formal defects (article 55.2 of the Workers’ Statute)

In this case, only for disciplinary dismissals, the Workers’ Statute provides the possibility of carrying out a new dismissal, within 20 days of the first, to remedyt formal defects, paying the processing salaries generated between the dates of the two dismissals and keeping the employee registered with Social Security during that period.

In contrast with the previous case, by this via, the second dismissal may be based on the same facts or causes used in the first, but except for possible formal defects in the first communication, such as, for instance: the lack of concreteness of the facts in the letter, the opening of the contradictory file to the employee’s representative or compliance with additional requirements established by the collective agreement.

However, procedurally, this second dismissal would be independent of the first, so the employee would also have to take a legal action against it.

3. Second disciplinary dismissal communicated after a judgment declaring the first one unjustified due to formal defects (article 110.4 of the Law regulating the social jurisdiction)

Likewise, only for disciplinary dismissals, the Law regulating the social jurisdiction allows that, after notification of the unfairness of a dismissal based on non-compliance with formal requirements, the employer may opt for the reinstatement of the employee and carry out a new dismissal within a period of seven days from the judgment notification date.

Thus, procedurally, we would be faced with a new dismissal that could be based on the same facts as the first one but correcting the formal defects from which the former suffered.

However, to apply this alternative, the employer would have to pay the employee the procedural salaries accrued from the first dismissal until the notification of the judgment, taking the second dismissal from its date, and opening the possibility for the employee to additionally a dispute equally this second dismissal, whose trial would be held in the future, completely independently of the first.

 

In any case, although it is advisable to be aware of the existence of these possibilities, the best thing is to plan the extinction termination measures correctly, reviewing and respecting every formal condition required by law and by the applicable collective agreement.

Manuel Merino

Labor and Employment Department of Garrigues