Procedure for Delivering Notice of Dismissal to Employees in Cases of Terminations for Cause, by Justo Bautista Elizondo

September 7, 2016
Procedure for Delivering Notice of Dismissal to Employees in Cases of Terminations for Cause, by Justo Bautista Elizondo

Prior to the labor reform of 2012, and in accordance with article 47, section XV of the Federal Labor Law, an employer had the obligation to deliver notice of dismissal directly to an employee at the time of termination, and if the employee refused to accept such notice, the employer had five business days to present such notice at the Board of Conciliation and Arbitration with jurisdiction, providing the employee’s address and requesting the intervention of the authorities for purposes of delivering the dismissal notice to the employee. Subsequently, the Federal Labor Law was reformed and Article 47, Section XV was amended, resulting in an important change to the procedure for giving notice of dismissal in terminations for cause and its effects, the first being that it leaves it to the employer’s discretion to give the notice of dismissal directly to the employee at the time of termination or to give notice of such to the Board of Conciliation and Arbitration, each option having different legal effects. Therefore, in the case of absent employees, the employer may, in its own discretion, give such notice of dismissal directly to the authority with jurisdiction and not necessarily directly to the employee. The effects of exercising any of the two options provided by the amended article have not been determined. Secondly, the commencement of the statute of limitations will not prejudice the employee. Therefore, in an extreme case, such as, for example, if the employer chooses to give the notice of dismissal to the employee by means of the Board of Conciliation and Arbitration, and such authority does not deliver notice until two years following the actual date of termination, then the employee has the right to file a claim for unjustified termination within two months following the date on which the labor authority delivered the notice of dismissal to the employee. In the example given, the employee may file suit two years following the actual date of termination because the authority delayed in delivering the notice of dismissal. In view of the foregoing, it is important to take the entire situation into consideration before deciding to how to deliver notice of dismissal, in the case of a termination for cause.

Sources of information and disclaimer: The following sources of information, among others, have been used in preparing this document: Official Journal of the Federation, the Bank of Mexico, Supreme Court of Justice of the Nation, Department of Finance and Public Credit. The CCN MéxicoReport ™ does not constitute legal or tax advice and should not be used for purposes other than as purely informative for the general public. For more information on the CCN MéxicoReport ™, any of the issues mentioned therein or to inquire about legal services, please contact Rob Barnett (rbarnett@ccn-law.com) or Mario Melgar (mmelgar@ccn-law.com), phone (210) 222-1642.

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