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Objective dismissal and burden of proof regarding the absence of legal representation of employees, for the purpose of compliance with the delivery requirement

| News | Employment Law and Social Security

Jorge Molina analyze the Workers' Statute ("ET") in cases of objective dismissal for objective

One of the requirements set out in Article 53.1.c) of the Workers' Statute ("ET") in cases of objective dismissal for objective reasons of an economic, technical, organisational or productive nature is the submission of a copy of the letter of dismissal to the workers' legal representative. Obviously, this requirement is only applicable when such representatives actually exist, otherwise it would be impossible for the employer to comply with it.

In the task of drawing up letters of dismissal based on such objective grounds, it is sometimes necessary to reflect in the communication itself compliance with the legal requirements laid down in Article 53(1) of the ET, which are always and in any event met: (i) the provision of the corresponding legal compensation, and (ii) the 15-day notice period - whether it is complied with in full or in part, or not at all.

However, it is very common to find objective dismissal letters for economic, technical, organizational or productive reasons in which, since there are no legal representatives of the employees ("RLT") in the company, no reference is made to the fulfilment of the obligation (or rather the absence of the obligation) to deliver a copy of the notice to such representatives.

If the employee contests the letter of dismissal drafted in the aforementioned terms, and claims that the company has not given a copy to the RLT, even though there is no such representation in the company, who would have the burden of proof to prove the non-compliance?

This case is precisely the one analysed by the recent decision of the Labour Chamber of the High Court of Justice of Asturias, of 26th December 2019, (Appeal No. 2048/2019), in which it was stated that the company had not transferred the dismissal letter to the RLT, without the existence of such representation having been proved by any of the parties.

The company, which was an appellant in defence of the judgment of the Court of First Instance which declared the dismissal to be unjustified, claimed that under the principle of the right of defence, since it was the plaintiff who claimed that the requirement to hand over a copy to the legal representative had not been met, it was for him, in application of the rules on the burden of proof, to prove, firstly, the existence of a local authority in the company so that the company's obligation to comply with that formality could arise.

The Asturian Regional Chamber, however, concludes that this interpretation is not correct, and that, on the contrary, it is the employer who must prove the non-existence of RLT, and that, for this reason, it was not possible for him to transfer the copy of the letter to it.

In order to reach this conclusion, the Chamber assumes that it is an unavoidable obligation of the companies to state, in the letter of dismissal itself, the circumstances that prevent them from enforcing any of the formal requirements referred to in the aforementioned precept of the ET, as occurs, for example, in the case that legal compensation cannot be made available due to lack of liquidity. In other words, it would be the employer's obligation to express in the written communication that a copy is not given to the RLT, because it does not exist.

Otherwise, the employee would not have the necessary information to know if the termination he has been subject to, is in accordance with the law or not.

Therefore, since the employer is obliged to justify in the letter of dismissal the reason why the notice is not given to the Works Council or the Personnel Delegate(s), it also has the burden of proving that the dismissal was not carried out.

In addition, in the case under analysis, the company's defence, being aware of the disputed allegation, did not make any statement to the contrary. Therefore, the Chamber considers that, in addition, there was a kind of tacit acceptance, and therefore agreement of the parties on this issue.

It is for all of these reasons that we cannot forget, firstly, the importance of reflecting in the dismissal letter, not only the fulfilment of the legal requirements, but also the justification of those other impeding formal requirements that cannot be fulfilled; and secondly, the correct understanding of the rules of distribution of the burden of proof in dismissal proceedings, which oblige, in general, the accreditation of the fulfilment of all legal requirements from a formal perspective - whether they have been fulfilled or whether there is a cause or circumstance that has impeded them.

You can see the analysis in Actualidad Jurídica Aranzadi

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