The Supreme Court has ruled, in a judgment of 5 July 2023 (rec. 105/2022) , the discussion as to whether the delivery of the notice to the workers’ representatives in objective dismissals must be prior to or simultaneous with the notification to the dismissed employee or whether, on the contrary, it can be made subsequently.
Article 53.1 of the Workers’ Statute (WS) establishes the formalities that the company must comply with by the time of notifying a termination for objective reasons. Among the requirements to be taken into account by the employer is the obligation to provide a copy of the letter of dismissal to the legal representation of the workers, whose omission implies the declaration of unfair dismissal (article 122.3 of the Law Regulating Social Jurisdiction).
However, the aforementioned provision of the Workers´ Statute does not expressly establish the moment in which to deliver this communication to the Unitary Representation to be considered the requirement fulfilled. And, specifically, it does not require that this communication must be made prior to or simultaneously with the dismissal, a requirement that is literally established in other provisions of the Workers´ Statute. For instance, Article 53.1 of the WS stipulates that the severance payment must be made available at the same time as the employee is notified of the dismissal. This silence on the part of the legislator had led to contradictory rulings by the higher courts of justice, declaring the dismissal to be fair or unfair, depending on the time at which the notification would have been made to the workers’ representatives. The two prevailing trends were divided, on the one hand, into those pronouncements that required the notification to the representatives to be prior or simultaneous to the notification of the employee or the date of effects, and, on the other hand, into those rulings that declared the validity of the notification provided that it had been made within the term of twenty working days that the employee has to take action against the dismissal.
The Supreme Court has resolved the debate by analyzing a case in which the objective dismissal for organizational reasons was notified to the employee on 25 September 2020, with an effective date of such same a date. However, the communication to the representatives took place four days later, on 30 September 2020.
In a proceeding in which Garrigues’ Valencia office has assumed the procedural defense of the company, Valencia Social Court no. 16 declared the dismissal to be justified, considering that the communication made four days after the date of the termination notice complied with the formal requirements of article 53 of the WS. This decision was confirmed by the Social Division of the High Court of Justice of the Valencian Community, in the judgment of 19 October 2012 (Rec. 1556/2021).
In the appeal for the unification of doctrine filed by the employee, the judgment of the High Court of Justice of the Canary Islands of 29 June 2020 (rec. 118/2020) was alleged as a contrasting judgment, in which the dismissal was declared unfair because the company had delivered the copy of the letter to the legal representation of the workers one day after the date on which the dismissal took effect.
The fourth legal basis of the Supreme Court’s ruling states, as Garrigues defended, that the notification to the workers’ legal representatives may be made after the act of dismissal, as long as it is made within a reasonable period of time that neither frustrates the purposes of the legal requirement nor prevents the representatives from exercising the rights that may be linked to the information provided, such as advising the employee on the causes and circumstances of the dismissal. Consequently, in this concrete case, it concludes that the communication made four days later in no way prejudices or affects or conditions either the rights of the representatives or those of the employee herself.
To reach this conclusion, the court appeals to a previous doctrine according to which “the will of the law is that a reproduction of the letter of dismissal that has been given to the employee should be delivered”. Therefore, the court understands that this implies that the communication to the representatives cannot be prior to the delivery to the dismissed employee.
With this resolution, the main discussion is resolved, admitting that this communication to the representatives can be made after the act of dismissal and the effective date. However, the court does not accept one of the existing trends on the matter, which upheld the validity of this subsequent communication to the representatives as long as it takes place within the twenty working days that the employee must act against the dismissal decision. Thus, the fact of making the validity of this notification conditional on it taking place within a “reasonable period of time that neither thwarts the purposes of the legal requirement nor prevents the addressees, i.e. the representatives, from exercising the rights that may be linked to the information provided”, seems to lead us to the judicial bodies having to interpret what is understood by “reasonable period of time” or when the purposes linked to the information provided may be considered frustrated.
In short, taking this ruling as a reference, it seems that the specific circumstances of each case will have to be analyzed to determine whether the company, when the communication is made subsequently, has complied with the formal requirements of Article 53 of the WS. Therefore, given the indeterminate nature of the term “reasonable period” used by the court, it would be advisable to notify the representatives immediately after the employee has been notified of the dismissal.