Letting an employee go via a disciplinary dismissal
August 31, 2015
When an employer becomes aware that an employee has breached their contract, there is often the temptation to directly and immediately communicate disciplinary dismissal to the employee, informing him or her of this verbally.
While the above is logical and even justified, this should be avoided, since it will automatically determine that the dismissal be classified as “unfair dismissal” instead of “fair dismissal”.
Formal requirements in order that a disciplinary dismissal be considered to be “fair”
- The dismissal must always be notified to the employee in writing in what is known as a letter of dismissal. The letter should clearly determine the facts that justify the employer´s decision. In this regard, it is worth noting that a generic reference to the breach of contract does not suffice, as it is necessary to specify the facts on which the decision is based: the date and time of the events, an account of what happened, witnesses, etc. This requirement is intended to prevent the worker being left defenseless. E-mail
As a result, it is important to include all of the relevant facts in the letter of dismissal, because only those facts contained in the letter can be discussed at trial. Therefore, if the dismissal is based on several offenses, they must all be mentioned in order to be ruled on at the trial. That is, although not all dismissals end in a court process, it is important that the letter of dismissal include as many details as possible, as this document may have to be discussed before a court.
- Secondly, it is important to note the effective date of dismissal in the letter, since otherwise, the dismissal could be considered inappropriate. The worker must clearly know what day his dismissal becomes effective.
- Finally, the letter must be notified to the worker and evidence provided that the notification has at least been attempted. In this manner, if we proceed to deliver the letter by hand, we must request that the worker acknowledge receipt, stating the date and signing a copy. If the employee refuses, this fact can be noted using two witnesses willing to testify and confirm the attempt, which makes it advisable to have people who can be called upon at the time of the dismissal. Another option is to attempt to notify the letter at the worker’s home by sending a registered fax or by any other means which can be accredited. If the notice were not collected by the worker, it would not be invalidated because the employer’s obligation is met simply by attempting notification.
All of this being said, it is highly recommended to seek out specialized legal advice prior to delivering a letter of dismissal, to prevent the dismissal being declared inadmissible. Please contact us if you are in that situation.