Validity of the acceptance communicated after the date indicated in the letter

The TSJ declares that disciplinary dismissals communicated to the employee after the effective date stated in the dismissal letter are valid. However, this dismissal will only take effect from the date of the communication.

The worker had been providing services for the company until his disciplinary dismissal based on various breaches that the company considers serious and culpable, consisting of: unjustified absence from work, indiscipline and disobedience and breach of contractual good faith and abuse of trust in the performance of work.

In its letter of acceptance, the company indicates 2019.02.22 as the effective date. However, the communication of the company’s decision did not take place until three days later, on 2019.02.25.

The employee filed a complaint and filed a lawsuit for judicial review before the labour court, which was dismissed, declaring the employment relationship terminated as of 2019/02/22. The employee, in disagreement, lodged an appeal for leave to appeal before the TSJ. In the absence of a decision on this point, the employee claims the nullity of the first instance judgment and also of the dismissal or, alternatively, the unfairness of the dismissal.

The TSJ considers that it is not appropriate to declare the judgement null and void, as the judgement does not address this issue, and does not challenge either the veracity of the facts alleged in the letter of acquittal or the qualification of origin, so that in any case this qualification would remain unfulfilled.

With regard to the effects of late notification, the TSJ recalls that article 55.1 of the ET requires that the date on which it will take effect must be indicated in the notification of the dismissal. It considers that, even though the verbal term in the rule is in the future, this does not imply that only those dismissals notified prior to the effective date are valid. Admitting this possibility would mean excluding from formal validity those communicated on the same day as the effective date of the acceptance. For this reason, the effectiveness of the dismissal is not invalidated either by the circumstance that it is communicated later, since the important thing is that the employee knows the exact date of the dismissal; and if this is communicated later, the consequence is that the dismissal will only be effective from the time of notification. Until that moment, the employment relationship will continue to be in force and, with it, the right to receive remuneration.