News in the calculation of the term to challenge dismissal when the company notifies burofax to the worker

The Supreme Court has just settled the dispute on the “dies a quo” for the calculation of the period of exercise of the dismissal action when the company notifies the letter of dismissal through burofax and it cannot be handed over to the worker.

The Court’s ruling refers to the following scenario: The company sends burofax to the employee’s home, informing him of his disciplinary dismissal. After the appropriate delivery attempts, the consignment was pending collection at the post office on July 13, 2016. The worker collected the burofax at the post office on August 11, 2016, without having expired 30 days. natural to collect the document that establishes the regulations that regulate the provision of postal services.

The Supreme Court marries the sentence of supplication (STSJ Madrid of May 8, 2017, No. Rec. 2020/2017) and confirms the pronouncement of the sentence provided of contrast (STSJ Com. Valenciana of July 3, 2012, no. Rec. 1459/2012), concluding that the beginning of the period of exercise of the dismissal action is not the date on which Correos leaves the notice to remove the burofax, but the date on which the worker effectively removes said burofax, within the period 30 days since the Post left the notice.

And to do this, use the following arguments:

• The dismissal constitutes a declaration of will “receptitiva” reason why to take effect it must arrive at the knowledge of the worker. Thus, the company has a duty to notify the employee of the letter of dismissal. However, once the notification medium has been chosen, in order to understand it properly carried out, the “rules governing the chosen media” must be applied.
• The worker, simply upon a notice that he had a communication from the company, proceeded to collect the letter within the time limit established by art. 42 of RD 1829/1999. Therefore, he did not refuse to receive the letter of dismissal, did not make dilatory maneuvers, or acted in bad faith.
• The expiration of the dismissal action must be interpreted as restrictive, not extensive, as an “exceptional” measure that causes the decline of a right.

The judgment leaves some unanswered questions, such as how to calculate the “days a quo” when, after the appropriate delivery attempts, the worker does not pick up the contents of the communication in the post office ?

We must first take into account that, when the employee in his conduct precludes receiving the letter of dismissal, the company cannot be blamed for breaching the notification requirement. According to known doctrine of the Supreme Court, it is impossible to attribute the shortcomings in the notification to the person who has put all the appropriate means for the purpose pursued (STS of May 23, 1990).

Indeed, it could be inferred from the judgment that the exhaustion of the time limit for collecting it (30 days) would be equivalent to a “” refusal “of the worker to receive it, and therefore the” days a quo “should be set on the day following the end of the referred period.

If this is the criterion, it would mean a change in the interpretation made by other courts, which, in cases similar to the one raised, have taken as a reference the date on which the burofax tried to deliver the worker bankruptly at his home (among others, STSJ Castilla – La Mancha, of December 15, 2005, No. Rec. 635/2005; STSJ Catalonia, of September 14, 2018, No. Rec. 3160/2018).

Thus, the companies must take into account the possible delay in the time that this reliable means of notification may imply when the burofax has been attempted to notify in effect at the worker’s address.