“RESIGNATION”
Recently, both the New Labor Courts, as well as the Federal Injunction Courts, have issued legal criteria in relation to the valuation of the documents with which in a labor proceeding it is intended to prove the voluntary separation or “resignation” of the workers; In general, the criteria establish that the mere existence of “resignation” documents issued by a worker will not be sufficient within a jurisdictional proceeding to prove that the worker resigned voluntarily, autonomously and spontaneously from the job he/she had been performing, since the judge in question has the obligation to analyze in detail what the worker stated in his/her lawsuit, as well as to analyze the verisimilitude of the “resignation” documents, according to the particular characteristics and personal circumstances of the worker, such as his position, seniority, preparation, educational level, economic solvency, and in the case of women, even considering whether they are pregnant, breastfeeding, disabled due to maternity or recent maternity, among other aspects.
For further illustration, the reference of the most relevant criteria is shown below:
DISCLAIMER. IN ORDER TO BE CREDIBLE AND, THEREFORE, HAVE FULL DEMONSTRATIVE EFFECTIVENESS, IT IS UP TO THE EMPLOYER TO PROVE THAT IT MEETS THE CONDITIONS OF CERTAINTY AND THE MINIMUM ELEMENTS THAT REFLECT THE WILL, AUTONOMY AND SPONTANEITY OF THE EMPLOYEE, IF HE IS ABOUT TO RETIRE FOR YEARS OF SERVICE AND ALLEGES THAT HE WAS FORCED AND EVEN SUBJECTED TO PSYCHOLOGICAL PRESSURE TO SIGN IT.
AND
WAIVER. IN ACCORDANCE WITH THE PRINCIPLE OF THE PRIMACY OF REALITY, THE LABOR COURTS MUST ANALYZE ITS VERISIMILITUDE, TAKING INTO ACCOUNT THE PARTICULAR CHARACTERISTICS OF THE CASE AND THE PERSONAL CONDITIONS OF THE EMPLOYEE.
It is important to emphasize that the authorities and judges in labor matters, both at the federal and local levels, as well as the judges in injunction matters, are obliged to observe and adhere their actions to the criteria described above.
Now then, there is a problem in the daily life of the companies, due to the fact that the workers that separate from the work they had been performing, do not show up to receive the payment of their severance pay or are dissatisfied with it, so they later sue the company, arguing an unjustified dismissal, stating that they were forced to sign a resignation form, which, in many occasions, has legal grounds or technicalities that they do not understand.
In view of this situation, in ILC ABOGADOS we have formulated a document that we identify as “resignation form” and it is complementary to those that were previously used, allowing to manage in a safer way the voluntary separation of any worker.
We consider that having this new document, although it does not eliminate the possibility of a lawsuit, it will reduce the risk that could arise in case the resigning employee decides to sue for an alleged unjustified dismissal, since the judge will have a resignation document that will allow him/her to have greater certainty that the resignation was spontaneous and voluntary on the part of the employee.
We hope that this document will help in the management of human resources within your organization, and we look forward to hearing any questions or comments you may have.
Yours sincerely,