Ending the employment relationship is not as simple a matter as it seems, much less when it is the company that wishes to carry out a dismissal. In any case, the way in which this decision is communicated to the worker, by means of a dismissal letter, is essential to avoid possible claims, compensation and even the obligation to reinstate the dismissed employee.
At BBMabogados we have professionals with the broadest experience in employment matters, who will be ready to give you the best advice and show you the best way to draft a dismissal letter that protects your company’s interests, so do not hesitate to contact us.
What is a dismissal letter?
Above all, this is a document, with a certain date, in which the company’s grounds for terminating the employment relationship are set out. The importance of this letter is that it establishes a specific point at which the relationship is deemed terminated, but it also informs the worker of the reasons justifying the dismissal.
In any case, it should be remembered that employment relationships are supervised by the State, so when the company wishes to end the employment relationship before the stipulated time (in the case of fixed-term contracts), or simply to terminate the relationship with an indefinite-term worker, it must then rely on the grounds established by law.
When these grounds are not met, the dismissal becomes unfair and gives rise, in the worker’s favour, to a series of compensation rights. In this respect, the drafting of a dismissal letter must be quite clear in stating the ground for the dismissal and indicating how the worker’s conduct, or the company’s situation, legitimises reliance on that legal provision.
What must a dismissal letter contain in Santander?
Let us look at the minimum requirements a dismissal letter must have and how to draft it correctly.
DATE AND IDENTIFICATION OF THE RECIPIENT
As far as possible, the letter must have a certain date, which must appear clearly at the start of the letter. In addition, it must contain the worker’s full name, with their corresponding identification number.
REASONS FOR THE DISMISSAL
This is the most important part of the letter, since this is where the ground for the dismissal must be explained. In any case, it should be remembered that such reasons can only be based on:
OBJECTIVE GROUNDS
These are not necessarily attributable to the worker’s conduct, but to situations related to the performance of their duties or to the employee’s capacity to carry out those duties.
Among such circumstances we may mention the worker’s supervening incapacity to perform their employment obligations and the failure to adapt to technical changes made to their post, but especially notable are the company’s economic or production conditions. These latter reasons, properly objective, may be economic, technical, organisational or production-related.
DISCIPLINARY GROUNDS
These are the most serious arguments against the worker, as they imply that the worker engaged in negative or reprehensible conduct under the law. Such conduct may include the failure to comply with instructions given that endanger the company’s safety, but also situations related to the worker attending the workplace in a state of intoxication, among several others.
Such grounds concern intentional conduct on the part of the worker that is not acceptable within the employment relationship.
COLLECTIVE GROUNDS
In this case the letter will be quite different, as it will follow a prior process, specific to collective dismissal. In any case, do not hesitate to contact us to obtain more information on this particular matter.
EXPLANATION OF THE FACTS
This means setting out the background to the decision and explaining why the worker’s conduct falls within the ground relied on for the dismissal. In this section it is extremely important to provide the documents or records that serve as evidence.
By way of example, in the case of relying on dismissal for unjustified absence, the letter may set out the evidence of that absence, marking it as «annexes» within the letter (for example: “as evidenced in «Annex A»”).
SIGNATURE OF THE EMPLOYER
Every letter must be signed by the company’s representative before the worker; otherwise, it will not be valid.
SIGNATURE AND RECEIPT BY THE WORKER
The worker must sign the dismissal letter and, as far as possible, must write in their own hand the date of receipt.
If the worker does not wish to sign the letter, or acknowledge receipt, it may be sent to them by means of a certified fax (burofax) or a statement may be drawn up with witnesses, recording that the worker was notified and refused to receive the letter.
When should a dismissal letter be delivered in Santander?
This is a point to bear in mind, since in an objective dismissal the letter must be delivered at least 15 days before the dismissal takes effect (notice period). This notice period is specific to objective dismissal and does not depend on the worker’s length of service. Disciplinary dismissal, by contrast, does not require notice.
Now then, if this period is not observed, the company must pay the salary corresponding to the notice days not respected.
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