An employee on leave was notified on two occasions of a vacancy enabling him to return to work, as he himself had requested, and the employer, upon receiving no reply, dismissed him on grounds of serious and culpable breach, based on his unjustified absence from work.

 A judgment of the High Court of the Principality of Asturias, dated May 21, 2018, upheld the dismissal on grounds of serious and culpable breach of an employee who, after being notified on two occasions by registered fax of a vacancy enabling him to return to work after a voluntary leave of absence, failed to respond, claiming that he had not received the notices.

The events, as set forth in the judgment, were as follows:

  1. At the end of a voluntary leave of absence, the employer sent two registered faxes to the employee on leave (to the addresses that were known to it and had been used during the leave, as well as to his father and lawyer), stating that there was a vacancy enabling him to return to work, as previously requested by the employee.
  2. 11 calendar days after the second registered fax without any response from the employee on leave, the employer notified him, also by registered fax, of his dismissal on grounds of serious and culpable breach, based on his unjustified absence from work.
  3. In view of the last registered fax, the employee informed the employer that he had received all three registered faxes simultaneously and stated that he was ready to return to work immediately, giving his express consent to the employer’s use of e-mail or WhatsApp to inform him of the vacancy enabling him to return to work.
  4. The employee contested his dismissal by claiming that the registered faxes offering him the possibility of returning to work had failed to serve as prior notice and that, accordingly, he could not be accused of unjustified absence from work.
  5. After examining the merits of the case, the Asturias High Court took the view that notice of the order to return to work had been served diligently and validly by the employer, given that it had used forms that may be considered unequivocally suitable for notifying the employee of its decision.
  6. In particular, the court gave special emphasis to, inter alia, the following aspects:
  • two registered faxes had been sent not only to the employee but also to his father and lawyer;
  • the addresses to which the registered faxes were sent were correct;
  • the Spanish postal service served notice on the employee, asking him to pick up the registered faxes;
  • in the past, the employee had successfully received other notices at these same addresses; and, lastly
  • the employee acknowledged receipt of the third and last registered fax, i.e., the one informing him of his dismissal.

The court concluded that, if the notice was unable to be served, this was on grounds attributable to the employee and, accordingly, only the employee could and should be held liable for the consequences of his lack of notification, comparing the actions of the employer, described above, with those of the employee, who furnished no justification whatsoever for his passivity in the receipt of the notices.  Having regard to all of the foregoing, the court took the view that it was the employee who, due to his attitude, prevented notification.

This reasoning could leave room for surmising that the conclusion might have been different had the employee been able to give an objective reason for his failure to receive the registered faxes, despite multiple notices from the company, which means that such situations should be analyzed carefully, having regard to all circumstances present in each case.

Ismael Viejo

Garrigues Labor and Employment Law Department