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General Interest

Resign at work through WhatsApp is legal

Publicado el 18/1/2016

Resign at work through WhatsApp is legal

A judge of the Supreme Court of Madrid has given validity to a voluntary resignation communicated by a mobile messaging application superior because it is considered 'aware' to be answered by this means.
The world of electronic communications is installed in the labor sector. These systems favor the speed and efficiency at work, but also generate conflicts, as in the case of layoffs or voluntary redundancies carried out by these services. In a recent judgment of the Superior Court of Justice (TSJ) of Madrid, the judge decided to give validity to a resignation of the employer by WhatsApp. But what requirements must be met to make it so?
"The electronic messaging conversations are close to verbal communication. In addition, as already shown, these systems are manipulated and can alter the content of the messages, so it is essential to have a set of evidence-other messages, witnesses, and so on, to give more strength, "says Raúl Rojas, partner work of Ecija.
In this sense, the Madrid Supreme Court ruling specifies that "the resignation may be express or tacit manner, not being necessary to fit a formal statement, it suffices that the course pursued by the same manifest their so indisputable option for breaking or termination of the employment relationship, although a will of clear, specific, conscious, firm and strict worker, revealing its purpose "is required. If it should manifest tacit conclusive facts, ie do not leave any room for reasonable doubt about its intent and scope.

 Clear intention
As noted by Rojas in the trial course it was clearly documented intention of working, as it not only the message of resignation was provided, but also presented the response from the company to this communication and witness statements.
"It is always advisable in these cases, in addition to the documentary evidence from the wording of the communication -certified, if possible, by affidavit or pericial- report, evidence of the true will of the worker contribute, such as the statement of a witness or could even become useful in determining this end, the worker's own words spoken in part based interrogation, "he adds.
It is also important to know the validity of the dismissals for mobile messaging. In this case, Rojas says that both Article 53 and 55 of the Workers' Statute requires that the communication is necessarily made in writing, clearly stating the cause of termination and the date of termination of the employment relationship, stating the facts specific motivating the decision to terminate the employment relationship. "These demands are a guarantee for the worker to have knowledge of the facts underlying this circumstance to guarantee its own defense."
These obligations seem almost impossible to meet through a WhatsApp message, but by email or SMS. "There are specialized companies that certify mails or SMS, seeking certification text, date and time sent, acknowledged by the recipient, including, where appropriate, notarial deposit. However, there are still companies that certify communications WhatsApp through, "says Rojas.
It is not mandatory for personal mobile company
A judgment of 21 September 2015 the Supreme Court (TS) has shaken the foundations of labor relations and electronic communications. The reason for this fluctuation is based on that, in its ruling, the high court declared the type of abusive labor contracts requiring employees to facilitate mobile number or personal email clauses, through them, make electronic communications within the employment relationship between the parties.
Raul Rojas explains, partner work area of ​​Ecija, to reach this resolution, the TS followed the doctrine of the National Court -Judgement 28/01/2014 and focused on two premises: the personal data and that the employment is scarce. On the first point, the court identified that information relating to mobile and email of a worker are personal data that are protected by the Organic Law on Data Protection and, therefore, requires an explicit consent. The second premise on which the Supreme is based is that in this time of crisis employment is scarce.
The court, which means that "given the current times of progressive telematics strength across the board" is desirable to have this avenue of communication between the parties, notes in his ruling that at this point, and considering that labor is scarce The consent of a worker may not be all volunteer could imagine. In fact, the TS adds that "may be understood to consent to such an extent is not entirely free" and, therefore, decides to consider this contractual clause void.
Dangerous argument
Despite understand the reasoning by the Supreme Court and the conclusion of the judgment, Rojas emphasizes the argument used by the high court to end the unfair term: understand that work is scarce.
"Understandably, the TS use the argument rather small, but it also has a dangerous way, since it can serve to invalidate the clause like many others who are in labor contracts. Based on this ruling, a worker could also try to cancel another common clause as is the control of information technology and allows all companies review the technological means available to workers to perform their work, "said Rojas.

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