The use of communication systems such as ‘WhatsApp’ could be, from an organizational perspective, ideal for notifying indefinite-term workers with seasonal contracts, as opposed to other more formal or traditional communications such as by letter or bureaufax, or too informal means such as a simple phone call, but are calls via ‘WhatsApp’ legally viable?
The figure of an indefinite-term seasonal worker has taken on undeniable importance in labor relations following the labor reform introduced by Royal Decree-Law 32/2021, thus giving an essential role to indefinite-term seasonal workers during periods of inactivity.
One question that arises when notifying the worker is how it should take place, especially when Article 16 of the Workers’ Statute states that notifications must be in writing or by any other means that allows the person concerned to be duly notified with exact indications of the working conditions and with suitable notice.
Obviously, it does not appear that notification by bureaufax would contravene this provision, but the fact is that due to a possible delay and/or cost, it may not be the ideal means of notification in some cases. A simple telephone call would not leave a record of the notification of the worker in question and is therefore not a suitable means, notwithstanding the fact that it may supplement written notification.
However, communications via WhatsApp, email or text message (SMS) could fulfil the requirement of proof of due notification to indefinite-term seasonal workers, as they are immediate and suitable notifications in light of some companies’ production requirements.
For such purposes, we should highlight the recent judgment 162/2022 by the National Court of December 5, 2022 which, amongst other issues, analyzed whether notifications to indefinite-term seasonal workers could be sent by these communications systems, concluding that they do not contravene the law, as notifications by WhatsApp, mobile phone messaging applications (SMS) or email are in writing and there is sufficient evidence to establish their existence and content in the terms of article 16 of the Workers’ Statute.
However, we should not forget that the employer bears the burden of proof of having sent the notification and must therefore be particularly diligent in its communications, which may be helped by a contractual provision referring to the means of notification and, where appropriate, the telephone number, email address, etc., to which it should be sent.
In any case, the Workers’ Statute establishes a mandate in collective bargaining to determine the objective and formal criteria governing notifications to indefinite-term seasonal workers, with collective bargaining being particularly relevant in the regulation of the matter.
All the above invites us to consider the viability and suitability of this type of system for other types of communications between companies and their workers that still take place on paper.