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In a lawsuit where an employee alleges that he was forced to sign a resignation letter, the employer must demonstrate that the document is original and that it reflects the will and autonomy of the employee; workers have to prove the influence, deception or coercion to resign, is established in a new criterion published by the Judiciary.
When resolving an injunction filed by a worker who, during a trial, alleged that he was forced and received instructions to sign his resignation, the Fifth Collegiate Court on Labor of the First Circuit (Mexico City) issued an isolated thesis in which it establishes the criteria that the judges must consider to determine if it was a forced resignation or not.
“When the worker alleges that he was forced and even received instructions to sign his resignation, and the employer affirms that the termination of the employment relationship was voluntary, it is up to him: to prove the existence of the original written resignation, which must contain the elements of certainty suitable to reflect, convincingly and consistently, the will, autonomy and spontaneity of the worker for these purposes, ”said the court in the thesis published in the Judicial Weekly of the Federation.
If the employer proves the above, the burden of proof falls on the worker, who must prove the “alleged physical, moral or economic influence, deception, coercion or intimidation, for which he will only have the burden of providing objective evidence.” According to the judicial criterion, it is enough that the evidence presented by the employee generates a scenario of suspicion or doubt on the conditions of security, autonomy or freedom to determine that the resignation was forced.
Being a labor thesis Isolated is not a mandatory criterion, but it is usually considered by the courts of the same circuit and opens the door to jurisprudence. In the opinion of Luis Enrique Cervantes, partner of the Labor Practice of the González Calvillo firm, this resolution reinforces other criteria and emphasizes the need for “companies to treat things by name, when it is a resignation, that it really is. When it is terminated by mutual agreement, that it be drawn up as an agreement, that it is valid and legal and that it does not require the signing of other documents”.
“The judicial experience shows that on many occasions the dismissal is covered up under uncertain or artificial situations (such as the blank sheet signature as a condition to enter work or the signing of resignation forms under pressure of subordination)”, is exposed in the justification of the thesis.
In this sense, Luis Enrique Cervantes affirms that in the processes of termination of labor relations, some lawyers have promoted a bad practice in which the worker is asked to sign a resignation letter to give greater security to employers. However, “the resignation is a free writing by the worker, who unilaterally expresses his desire to terminate the employment relationship.”
Sofía Gómez Bautista, head of the Labor Area of the firm Creel Abogados, agrees that the content of a resignation letter It must convincingly demonstrate that it is the worker’s decision to terminate the employment relationship, without any type of fraud, coercion or violence.
“This thesis establishes a very important evaluation criterion, it even imposes burdens of proof to both parties. The worrying thing is that the worker is only required to provide objective indications, a suspicion of doubt or a mere possibility that he has been forced, that is worrying and even unfair, ”he points out.
language matters
From the perspective of Luis Enrique Cervantes, this judicial criterion leads us to reflect on whether even the formats of resignation letters that provide the claims to the companies are functional or could generate doubts before a court due to the technical language with which the document is written and the series of elements to separate the companies from various issues.
“To the extent that the letter of resignation is a reflection of the freedom, desire and autonomy of the worker to end the relationship, it will be a resignation. That is to say, that it does not contain legal elements, that it does not contain expressions and releases that are not typical of a resignation, because then the employer’s hand is seen to tell the worker: this is what you have to sign”, explains the specialist of Gonzalez Calvillo firm.
For Sofía Gómez Bautista, although it may be an “archaic” practice, one way in which the resignation may be valid is that it be handwritten by the worker and freely express their desire to leave the company.
The court’s resolution, adds the specialist from Creel Abogados, emphasizes the need for companies to ensure that resignation letters have the essential elements to reflect the convincing, autonomous and spontaneous decision of the workers to leave their jobs. “The key to success is prevention and that officials are very aware that no one can be forced to sign their resignation.”
What must each party contribute?
According to the criteria issued by the Judicial Power, if during a trial the worker alleges that he was forced to sign the resignation, each party must provide the following evidence:
Pattern
- Prove the existence of the original document
- The letter of resignation must contain elements of certainty
In the opinion of the specialists consulted, this implies that the document must contain elements such as a simple languagewithout formalities and a clear statement of the worker’s desire to terminate the employment relationship.
Employee
- Demonstrate the influence, deception, coercion or physical, moral or economic intimidation
- Provide objective indications that show a scenario of doubt or suspicion about the absence of conditions of security, autonomy and freedom at the time of signing the letter.
Specialists consider that an element that may indicate that the resignation was forced or forced is the message that the worker may receive from the employer prior to ending the employment relationship, since it could indicate that the letter was already made, they can also be a test the text messages with instructions to sign the document to allow the exit and cover payments to the worker or, video or audio recordings that the worker makes during the termination of the employment relationship.
“It is essential that the jurisdictional body assess the evidence based on said levels of verification of the disputed facts, through the application of the dynamic system of evidence, complemented by a sound critical evidence model, whose purpose is that the worker –in the context of a hostile evidentiary environment– materially has the possibility of proving the truth of the facts, so that his/her burden of proof does not translate into a legal impossibility, ”said the court in its resolution.
