Writing a letter of dismissal. Aspects to consider.
The dismissal letter is a document through which the company communicates to the worker his dismissal for objective reasons.
The objective dismissal is that which occurs when any of the objectives causes expressly provided in the labor laws concur.
What is a Letter of dismissal?
Dismissal is an act of will of the employer through which the employment relationship that links the worker to the company ceases.
The communication of this decision can be carried out in several ways: verbally or through external acts that clearly and unequivocally express the desire for contractual termination.
In any case, the legal norm requires its formalization in writing. This legal requirement is reflected in the so-called Dismissal Letter that the employer delivers to the worker.
The termination of the labor contract unilaterally by the employer may be due to objective reasons or disciplinary dismissal.
The dismissal for objective reasons is contained in article 52 of the Statute of the workers.
This legal precept states as objective causes of contract termination:
- The ineptitude of the known or survived worker.
- The lack of adaptation of the worker to the technical modifications arising in the company.
- Lack of assistance to work.
- Or when there is an objectively accredited need to amortize jobs.
On the contrary, disciplinary dismissal is based on a serious and guilty breach of the worker as well as indiscipline, verbal or physical offenses, drunkenness or drug addiction, a transgression of good contractual faith, etc.
While it is true that whatever the substantive cause of the termination of the employment relationship is, it is required as an essential requirement that the dismissal be communicated to the worker in advance and in writing.
In the case of dismissal for objective reasons, in addition to the written communication, the Statute of the workers requires making available to the worker the corresponding compensation (20 days of salary per year worked with a maximum of 12 monthly payments).
In turn, the employee must be granted a 30-day notice period from the delivery of personal communication until the effective termination of the employment contract.
The letter of dismissal must relate in an exhaustive manner the facts that motivate it in a precise and concrete way, never general or global.
For example, if the dismissal is based on the repeated lack of punctuality of the worker, the letter of dismissal must specify the aforementioned faults with a specific day and time, not enough to claim the faults without their correct exposure.
The law establishes the requirements of communication and clarity on the one hand to make known to the worker the reasons that motivate his dismissal so that he can articulate his defense based on the alleged charges.
On the other hand, the judicial controversy that arises is unequivocally defined, since the employer cannot claim as grounds for dismissal others that are not expressly stated in the dismissal letter.
In fact, the lack of clarity or concretion in the facts reported in the letter according to jurisprudence can lead to unfair dismissal. This is one of the fundamental issues that the worker and the employer must take into account when receiving and drafting the dismissal letter respectively.
Writing a letter of dismissal
The correct wording must avoid vagueness and inaccuracy.
On the other hand, it is important to fix the dismissal in writing establishing an exact date for the purposes of the possible challenge before the labor jurisdiction.
Do not forget that in this jurisdiction the action to claim the dismissal has very short deadlines. If they are not respected the prescribed action.
In short, the means by which the dismissal is expressed, the letter of dismissal, must comply with formalities expressly assessed in the legal body. Failure to comply with these requirements may result in the dismissal being declared inadmissible.
For all this, businessmen and workers have to examine in depth the Letter of Dismissal attending each one to the interests that may affect them.
Dismissal letter – Simple notification
By means of the present, I inform that the person (Designation), ceases to work as of the date, thus agreeing to the interests of the company, so that the employment relationship between Fulanito and the company is terminated, without existing no outstanding debts to the date of payroll, vacation premium, bonus, vacations and other benefits that are generated.
Sample letter of dismissal
In ……………, to …… of ………………. of 20………
Hereby, the company’s management informs you that it has made the decision to proceed with the termination of its employment contract, based on the powers recognized therein in Article 54 of the Workers’ Statute, to proceed with disciplinary dismissal.
We are not obliged to make this decision based on the following reasons: …………… ..
You should know that said offense is classified as a justified cause for dismissal, in article ……… .. of the collective agreement applicable to this company and punishable by dismissal by article ……… of the same legal text.
Therefore, against the aforementioned sanction, resort to the Social Court within 20 days from the receipt of this without prejudice to the receipt of the settlement that corresponds to balance and settlement, and that is at your disposal in the offices of this company.
Without another particular,
Signed: (the company)