The way a company communicates a dismissal is just as important as the reason behind it. An error in the method used or in the proof of notification can lead to the dismissal being declared unfair or even null and void. Case law has been defining which channels are valid and under what conditions, providing an increasingly clear framework for both companies and employees.
The importance of communicating dismissal correctly
Dismissal is a formal act that must be notified clearly, reliably, and in a verifiable manner. It is not enough for the company to simply decide to terminate the contract; it is essential to prove that the employee received the notification and had access to its contents.
When there are defects in the notification process, the courts may consider that the dismissal has not been properly communicated, with the corresponding legal consequences. For this reason, the choice of communication method is crucial in any dismissal procedure.
Personal delivery of the dismissal letter
Personal delivery of the dismissal letter remains the legally safest method. In this case, the company delivers the letter directly to the employee and keeps a signed copy as proof of receipt.
If the employee refuses to sign, the company can document this refusal by having eyewitnesses who are willing to testify in court sign the notices. However, the evaluation of these testimonies rests solely with the court handling the case. If the court does not find the attempted notification to be valid, the dismissal may be overturned.
Notification of dismissal by registered mail, certified mail or via notary
The Supreme Court's jurisprudence has accepted as valid any means of communication that allows proof of both the sending and the content of the notification. These include:
- Registered mail with return receipt requested.
- The burofax with content certification.
- The notification was made through a notary.
In the case of a burofax, if there is a disagreement about the content of the communication, proof of delivery is not enough: a certified copy of the sent text is essential. These methods are especially recommended when personal delivery is not possible.
Notification of dismissal by email
Email is not the traditional method for communicating a dismissal, but it has been accepted by several High Courts of Justice in certain cases. It is considered valid when circumstances such as the following apply:
- That email be a regular means of communication between company and employee.
- Please attach the dismissal letter to the message.
- That the sending, receipt and effective access to the content can be verified.
- That shipping and receiving certification systems be used.
Even without explicit authorization to use personal email, some courts have validated this method when it is proven that the employee accessed the message and became aware of its content within a short period. Conversely, it is not considered valid when the message is rejected and there is no prior agreement regarding this communication channel.
Communication of dismissal via WhatsApp or other messaging applications
Notifying an employee of their dismissal via WhatsApp or other instant messaging applications cannot generally be considered valid. This method may conflict with fundamental rights such as the right to privacy, the confidentiality of communications, or the protection of personal data.
However, case law has admitted its use exceptionally in very specific situations, such as:
- When the company has previously attempted to notify the dismissal through formal means without success, due to a cause attributable to the employee.
- During the probationary period, in which labor regulations do not require a specific form for the termination of the contract.
Outside of these cases, the use of WhatsApp poses a high risk to the validity of the dismissal.
Practical recommendations for companies
In light of legal precedent, it is advisable that companies always choose communication methods that provide irrefutable proof of notification and its content. Personal delivery or certified mail with text verification remain the most legally secure options.
In complex situations or when there are doubts about the appropriate channel, it is advisable to seek professional advice to avoid formal defects that could lead to the dismissal being deemed unfair or null and void.
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