In this case, the jurisprudence of the Supreme Court (TS) is applied and it is declared that, provided that no damages are generated to third parties, the worker -during the period of notice- has the possibility of retracting the resignation presented.
Effects of worker retraction
A worker sends the company a signed letter in which he expresses his intention to, after the notice period, cause voluntary withdrawal. Days before the end of this period, the worker communicates to the company by burofax his firm intention to retract the leave presented. However, when the date on which it had to take effect arrived, and the employer prevented the worker from carrying out his activity, verbally informing him that he could no longer return to his job, since he had requested his leave.
Faced with this fact, the worker files a dismissal claim requesting that the dismissal is inadmissible, and the question to be debated,whether a worker can retract a voluntary leave during the notice period.
the Doctrine of the Supreme Court establishes that yes it is possible to admit the validity and effectiveness of the worker’s retraction when it occurs during the notice period,since the employment relationship has not yet been terminated; and provided that the employer has not yet hired to another person to fill the position of the worker who had announced his resignation.
The reasons are as follows:
- the actual effectiveness of resignation only occurs at the end of the notice period.
- notice is provided in the interests of both parties, not just the employer.
- it is more in line with the principle of job retention and is a more consistent solution with the general principle of retention of the legal business.
- the principle of good faith in labour law supports the possibility of withdrawal if it does not cause harm to the other contractual party, i.e. if the employer has not yet hired another worker for the same position.
Consequently, in the If prosecuted, the worker has the right to reconsider his decision and the employer’s refusal to admit the retraction implies a dismissal that must be described as unfair.
In addition, the worker reliably communicated to the employer his willingness to annul his previous decision, appearing at his job.
For all these reasons, the demand for dismissal is estimated, which is declared inadmissible.
Resignation, dismissal and retraction. The doctrine of the Supreme Council
Withdrawal of the entrepreneur
Retraction is the unilateral business decision to want to annul the dismissal already communicated, and made effective.
It is valid when it occurs:
- with acceptance of the worker.
- or between the time of notice and the effectiveness of the dismissal in which the contract remains in force.
If the retraction is valid,the employment relationship is resumed; so if the worker does not rejoin, he can be sanctioned for lack of attendance at work, or the absence be considered as a resignation.
The employer’s withdrawal is not valid when it occurs without acceptance of the worker once the employment relationship has ended, so the worker’s refusal to reinstatement does not imply resignation.
As a general rule, the resignation of a worker is endowed with immediate effectiveness,so it is not susceptible to subsequent retraction, having caused effects on third parties.
Unless the worker’s withdrawal occurs during the notice period,and this for the following reasons:
- although the purpose of the notice is to protect the interests of the employer, it also works in favour of the worker, by ensuring the continuation of the employment relationship during the period of notice (which may also support the possibility of rectification in the decision adopted).
- the application of the principle of business preservation advises admitting – in certain circumstances – retractability in termination decisions whether it depends on the will of the employer, as well as that of the worker.
- the application of the principle of good faith allows the possibility of retraction with the limit that no substantial damage is caused to third parties (for example, that the employer has not yet hired another person to occupy the position of the worker who had communicated his resignation).
He resigned and now regrets it.
If we put ourselves in a situation: imagine that one of your employees gives you a letter of voluntary withdrawal. You must remember that, in these cases, the worker must grant you a certain period of notice -established by agreement-.
Otherwise, it would be possible to deduct from the worker’s settlement, one day’s salary for each day of notice not respected.
However, before reaching the effective date of his discharge, the affected party informs you that he retracts his resignation and that he wants to continue working.
- Such withdrawal is valid as long as it occurs within the notice period. Since the contract is still in effect, your employee is free to decide if he wants to continue working. In any case, you may require him to communicate the retraction in writing.
- You will not be able to refuse to keep your employee, if he has retracted with the above conditions. If the date on which the resignation was going to take effect arrives, you process the employee’s discharge, said withdrawal would become an unfair dismissal and you would have to pay the corresponding compensation.
An employee may retract his resignation as long as he does so during the notice period.
Case Study: Assumptions of Voluntary Withdrawal Retraction
Assumption 1: Retraction if there is a notice period
On March 15, 2018, a worker submits the request for voluntary leave to the company. The communication is made with a notice period of 15 days, so the termination of the contract will occur on March 31, 2018.
But on March 30, 2018, the company informed the worker that he must return to his job having retracted his decision to dismiss
Would this retraction be valid?
The worker can retract the termination decision during the notice period, that is, between March 15 and 31; since during the notice period the employment relationship still remains in force.
Therefore, the worker’s withdrawal is valid, and the employer is obliged to reinstate him to the job. Failure to do so could be considered dismissal without just cause.
However, if this retraction produces harmful effects for third parties, the company can deny the reinstatement of the worker (for example: having incorporated another worker into the position).
Assumption 2: Retraction without notice period
On March 15, 2018, a worker delivers the request for voluntary leave to the company with immediate effect. However, the next day he informs the company that he retracts the presentation of the voluntary leave and that he wishes to return to work.
Would the worker’s retraction be valid?
When voluntary withdrawal is communicated, it has immediate effects, so the employment relationship is terminated. Therefore, it is no longer possible to reactivate the contract by the simple unilateral will of the worker, being also necessary the will of the company, which can accept the “readmission” or consider that this withdrawal has occurred for all purposes.
Therefore, once the contract is terminated, there can only be retraction in case of agreement with the company.
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