The Superior Court of Justice of Madrid declared the dismissal of a worker who did not reinstate his job unfair, since he did not live, he received notification to do so. The court considered that it should be used for WhatsApp, however it is not found that the worker will receive prior notice and sometimes prior notice will be given this way.
Article 55.1 of the ET establishes that the dismissal must be notified in writing to the worker, and the expression "to be notified" has been interpreted by the jurisprudence indicating that, when the worker prevents the receipt of the dismissal letter with his conduct, it is not possible to charge the company with a breach of the notification requirement of the letter. It is important to remember that this formal requirement is complete if the employer uses the formulas that can unequivocally consider the decision to be made.
As stated in the judgment, up to four times, and through two different communication channels (email and postal mail at the address provided by the worker as "his address"), the company tried to notify the date of return to his job due to disaffection of the ERTE in which the worker was included. Postal communications were returned by postal officials when the addressee was unknown, and there is no record of whether or not the worker read the email.
notice of dismissal
After days after the failed date of reinstatement, the company chooses to communicate with the worker through WhatsApp. In this case, he was notified of his disciplinary dismissal for having missed 6 days since the reinstatement had been communicated. So yes, the operator responded by WhatsApp, although he was only interested in his termination, without questioning the causes that led to his dismissal or giving a reason for his whereabouts or a real address for the purposes of communications with the company.
In the opinion of the magistrates, it is the businessman -given the importance of the sanctioning measure that he is preparing to impose-, who has the duty to exhaust the regular communication mechanisms, among which is WhatsApp.
Reason for which the Chamber criticizes that the company went to WhatsApp to inform the worker of his termination, and not before to require him to reinstate his job.
For all these reasons, the Court considered that the worker did not voluntarily leave his job in the terms required by the conventional norm that is cited in the extinctive communication, for which reason the dismissal was declared unfair and condemned the company. demanded to readmit the actor, where the compensation in the amount of 4196,89 euros
