In the media and among colleagues, the issuance of sentence No. 2021-12547 at 9:45 a.m. on June 1, 2021, has caused different impressions. Accordingly, the resolution establishes the obligation to express in the letter of dismissal with employer liability the specific reason (a detail of the events that occurred) that caused the termination of the employment contract.
1. Position of the Constitutional Chamber of the Supreme Court of Justice
The position of the Constitutional Chamber is that in the event of dismissal with employer liability, it is not enough to mention in the dismissal letter that it is based on the grounds provided in article 85 subsection d) of the Labor Code, namely, the "own will of the employer."
Not mentioning it violates fundamental worker rights. Likewise, it cites as a precedent sentence No. 2020-5064 of 9:45 a.m. on March 13, 2021, which examined a case in which at the end of the contract, two documents were delivered to the worker, as in effect it should be, the dismissal letter and dismissal certification. Only in none of them, as indicated by the Chamber, is it observed that the respondent company had referred "to how employee worked or delved into the causes of her dismissal."
2. Criticism of the judgment of the Constitutional Chamber and its jurisprudence.
In the original wording of the Labor Code, the concept of "dismissal letter" did not exist. The legislator only deemed it necessary to issue a "certificate" of dismissal. While the market practice ended up calling the communication of termination of the employment contract "letter of dismissal," the content of which was not regulated by the Code, the "certification" that legally had to be delivered lost prominence. The preceding, because either it was one more procedure that the companies warned was unnecessary, when the letter and the document, which includes the indemnities to be paid upon termination, already contained a good part of the certification information (date of entry and exit, type of work or position, cause of termination) or, by ignorance of the worker who did not know that he could demand it.
If the workers had been made aware of their rights and the companies of their obligations since 1943, the usual thing would have been for the termination to be communicated, logically indicating its effective date of application. Then, immediately, the certification would be extended, including the date of entry and exit, the type of work or position held, and only if the worker was interested, how he worked, and the cause of termination. Obviously, there should have been coherence between these last two aspects so that the worker would not have had any doubts about what motivated the employer's behavior.
Unfortunately, as the practice imposed itself on the legal framework, the debate focused on the dismissal letter not only as a means of communicating the decision but as a document that accredits the information that should be reserved for that other great absentee, the certification and even worse, not if the worker wishes, but as part of the minimum and mandatory content of the letter.
If with the indication that the dismissal with employer liability is based on the "own will of the employer" fundamental rights are violated, the consequence of this is that article 85 subsection d) of the Labor Code is unconstitutional because, in the logic of the legislator of 1943, a legal cause to terminate a contract is the invocation of that cause, which is only understood in a regime of free dismissal as provided in article 63 of the Political Constitution.
3. The Labor Procedure Reform.
The modification of paragraph 2 of article 35 of the Labor Code for the Labor Procedure Reform only regulated in greater detail the dismissal without employer responsibility, introducing in the Code the concept of "dismissal letter" for the first time, from its entry in force in July 2017. Only through a broad interpretation of the concept of "fault" could the application of this regulation be extended to dismissal with employer responsibility.
However, the concept of "fault" that the Labor Code does not define must necessarily be associated with a breach of an obligation. Thus, the preceding would inevitably place us in the field of disciplinary dismissal, to which the dismissal without employer liability belongs. In fact, that is the use that is given to this same concept in article 376 quater that also introduces the Labor Procedure Reform, to mention just one of the others, when talking about the failure to comply with the minimum services in the middle of a strike causes the workers designated to do so incur a serious "fault" in the labor relationship, which would justify disciplinary dismissal.
Additionally, that second paragraph of article 35 ends up attributing to the causal events indicated in the dismissal letter, the same procedural consequence that jurisprudence always assigned to that document as a formal requirement of dismissal without employer responsibility, which confirms that it refers to that assumption and not a different one.
In short, not even with the Labor Procedure Reform, the content of the dismissal letter with employer liability was regulated. Therefore, not only is certification mandatory, but that in it, the worker can demand that the cause of termination (that the same article 85 subsection d, not yet declared unconstitutional, allows that it may be the "own will of the employer"), but also, "how he worked," which is easy to understand, that in cultures that are not very assertive, it always constitutes a difficult communication barrier.
4. Position of the Second Chamber of the Supreme Court of Justice
Meanwhile, considering that the dismissal letter has inappropriately replaced the "certification" in judicial jurisprudence, as a reflection of that overwhelming market practice and after the Labor Procedure Reform, based on a broad and generic application, conscious or not of the concept of "fault," we must approach the doctrine of the Second Chamber of the Court.
The approach would be unnecessary if it were not for the procedural effects that can be attributed to the dismissal letter with employer responsibility that does not include the facts that motivate the dismissal; specifically, if this may limit the possibility of the employer to demonstrate in a judicial process, the exact reasons that support the employer's decision, an issue that is especially relevant in cases in which the nullity of the dismissal is disputed because a discriminatory motive is attributed to it.
On the occasions in which this issue has been discussed before the Second Chamber, there has not been a unanimous criterion on the part of the proprietary magistrates, whose votes have ended 3-2, in favor that the employer can, when answering the lawsuit, express the causes of the termination and offer the relevant evidence to prove it. For the current minority, allowing it "would generate legal uncertainty and a serious violation of the principles of defense and due process" (Judgment No. 2021-1086 at 10:15 a.m. on May 20, 2021), in addition to adequate judicial protection and contradictory (Judgment No. 2020-1767 of 10 a.m. on September 23, 2020).
The correct thing should be that this questioning is reserved solely and exclusively, in those cases in which there is a refusal of the employer to include this detail in the certification, once expressly requested by the worker, who has the right to review if in his specific termination if he was subject to an abusive or discriminatory dismissal. Consequently, if the worker does not request the detail, neither the letter should state it nor the certification without any consequence for the employer.
5. Options in the current situation
It is true that in the current state of affairs, during this confusion in the use of legal figures, the easiest way out is to attribute the content of the dismissal certification to the dismissal letter and, without consultation to the interests of the worker, including details of the events that led to the dismissal in the letter. The worker's right is violated, an invincible position is legislated and ensured from which to circumvent any incidence that the doctrine of the Constitutional Chamber has in the divided criterion of the Second Chamber. Therefore, the least technical of the decisions is the one with the most practical sense.
The other option is to claim, despite the "sailors' notices," the existence and difference of both figures, letter, and certification, each with its minimum content. The letter that communicates the dismissal with employer responsibility based on the not yet declared unconstitutional article 85 subsection d) of the Labor Code and the dismissal certification that reminds the worker that in addition to what is indicated there, the date of entry and exit, type of work or position), you can request that the cause of termination be recorded as well, which together with the way you worked, adds to guarantee legal security, the full exercise of the right to defense and contradictory and due process.
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