Company that fired employee for missing four days without justification is ordered to reinstate her or pay her 8,300 euros in compensation
The hospitality business in this case failed to serve the employee with formal notice of dismissal and the court has ruled the dismissal as unfair
A kitchen assistant was dismissed from her job in January last year for disciplinary reasons. The company seemingly had grounds for taking that decision: she had been absent from work for several days without any apparent justification. However, the High Court of Justice for the Canary Islands ultimately declared the dismissal unfair, as the employee was out of the country and did not receive the burofax (registered letter) informing her of her dismissal. She only became aware of the situation when she received a notification by whatsapp.
The lower court ruling originally upheld the dismissal as fair due to the absence of any justification for the absences. However, the employee appealed, citing the controversy surrounding the justification for her absence, as she claimed that she was on a holiday that was pre-agreed by her employer. "The employee never signed a leave request form, she has always taken her holidays by mutual agreement and done so verbally. It could be said that there was good faith between the parties. Therefore, she went on leave with verbal confirmation, without suspecting that the company had other intentions. And those intentions were none other than to proceed with her dismissal", states the ruling consulted by SUR.
Furthermore, the appeal court considers that article 55 of Spain's workers' statute has been infringed. This statute establishes that dismissal must be notified in writing to the employee, stating the facts on which dismissal is based and the date on which it will take effect. "Repeated case law has declared that, while the legal precept does not require a detailed description of the facts, it does require that the written communication provides the employee with clear, sufficient and unequivocal knowledge of the facts that they are accused of so that, having understood beyond reasonable doubt the scope of those facts, they can challenge the company's decision and prepare the evidence they deem appropriate for their defence. This purpose is not fulfilled when the aforementioned communication only contains generic and indeterminate accusations that seriously hinder that defence," the ruling states.
The court notes that dismissal is a "formal and receptive" act, meaning that the employee must, by necessity, be aware of the employer's decision to dismiss them and the employer bears the burden of proof that they have notified the employee of said dismissal in writing. Any failure to comply with this requirement renders the dismissal unfair.
So now the company must choose between compensating the employee to the tune of 8,319.63 euros or reinstating her.
The plaintiff employee started working for this business in June 2018 as a kitchen assistant. The company had stipulated that, in order to apply for holiday leave, employees had to inform their representative or line manager and sign a holiday request form. However, years later, the cook planned a trip to her home country between 20 January and 28 February 2024. She verbally informed her superior, who authorised the trip, but she never signed the required, printed form.
Therefore, four days after she had begun her vacation, the company sent a burofax to her home address requesting justification for her work absences. However, upon receiving no reply, the company decided to dismiss her on 29 January for a serious breach of Article 54 of the workers' statute. The employee received no further communications as she was not in the country so, when she could not be reached by the company, they sent her a whatsapp on 15 February with a 'Notification of termination'. That's when she learned that she had been fired, but without knowing the reason.
It was then that she turned to the courts, which have now ruled in her favour: "We understand that the employer did not exercise the due diligence required of them. We cannot affirm that the employee knew the reasons for her dismissal, as there is no evidence that the termination notice reached her. Sending documents via instant messaging is insufficient for this purpose and, in principle, there is no evidence that they were sent. Moreover, they lack the necessary formality to identify the reason for the termination of the employment relationship. Failure to comply with the formal requirements governing termination notices leads to a declaration of unfair dismissal", the ruling stresses.
