Developments in calculating deadline for challenging dismissals when employee is notified of dismissal by certified fax

The Spanish Supreme Court has just ruled on the controversy over the dies a quo for calculating the deadline for exercising dismissal actions when a company sends a dismissal letter via certified fax and it cannot be delivered to the employee (judgment of the Fourth Chamber of the Supreme Court, of January 29, 2020, Cassation appeal for the unification of doctrine 2578/2017).

The facts on which the Supreme Court has ruled refer to the following case: the company sent a certified fax to the employee’s home informing of the employee’s disciplinary dismissal. Following the appropriate delivery attempts, the letter remained pending collection at the post office on July 13, 2016. The employee collected the certified fax at the post office on August 11, 2016, without exhausting the deadline of 30 calendar days to collect the document established by the regulations governing the provision of postal services.

The Supreme Court overruled the judgment on appeal (judgment of the High Court of Madrid of May 8, 2017, Appeal 2020/2017) and confirmed the ruling of the contrasting judgment (judgment of the High Court of Valencia of July 3, 2012, Appeal 1459/2012), concluding that the start of the term for exercising the dismissal action is not the date on which the postal service leaves the notice to collect the certified fax, but instead, the date on which the employee collects the certified fax, within 30 days from when the postal service left the notice.

And to do so, the court uses the following arguments:

• The dismissal constitutes a declaration of intent requiring receipt, i.e., the employee must have knowledge of the dismissal for it to take effect. Thus, the company has a duty to notify the employee of the letter of dismissal. However, once the means of notice have been chosen, to consider the notice validly served, “the rules governing the chosen means” must be applied.
• The employee, having been informed that the company had sent a communication, collected the letter within the deadline established by article 42 of Royal Decree 1829/1999. Therefore, the employee did not refuse to receive the letter of dismissal, nor employ stalling techniques, nor act in bad faith.
• The expiry of the dismissal action must be interpreted restrictively, not extensively, given that it is an exceptional measure that leads to the impairment of a right.

The judgment leaves some questions unanswered, such as how do we calculate the dies a quo when, after the appropriate delivery attempts, the employee fails to collect the letter from the post office?

First, we must consider that, when the employee’s behavior prevents the receipt of the dismissal letter, the company cannot be found to have breached its duty to serve notice. According to well-known case law of the Supreme Court, whoever has employed all the appropriate means for the aim pursued cannot be found to have breached the duty of notice (judgment of the Supreme Court of May 23, 1990).

From the judgment we can deduce that the expiry of the notice collection period (30 days) would amount to a refusal by the employee to receive it and, therefore, the dies a quo should be established as the day after the end of the deadline.

If this were the criteria, it would represent a change in the interpretation made by other courts, which, in similar circumstances to the question raised, have taken as the reference the date of the unsuccessful delivery attempt of the certified fax at the employee’s home (such as the judgment of the High Court of Castile-La Mancha, of December 15, 2005, Appeal 635/2005; and the judgment of the High Court of Catalonia, of September 14, 2018, Appeal 3160/2018).

Hence, companies must now consider the potential delays that could be caused in using this reliable means of notification when the certified fax has not been successfully delivered to the employee’s home.