Mexico City, February 25th, 2022.
The Fifth Federal Circuit Court charged with Labor and Employment matters, recently issued a case decision that sets the criteria that lower Courts and Judges must consider determining whether the employee was compelled or forced to execute a resignation letter.
If the employee claims to have been forced or even instructed to execute a resignation letter, and the employer argues that the termination was voluntary, the employer has the burden of proof to evidence the existence of the original version of the resignation letter (wet ink), which must reflect amongst other elements, the employee´s will, autonomy, and spontaneity when drafting it.
Once the employer has met this burden, the employee will have to evidence that he/she was influenced, deceived, or even coerced by physical, moral, or economic intimidation.
Notwithstanding the above, the employee will only have to prove reasonable signs that led to a questionable or uncertain willingness. It would be sufficient if there is a suspicion, doubt or mere probability that brings to consider the absence of free will of the employee to have executed the resignation letter.
Although this case decision is not binding for all authorities, labor courts and boards or higher courts, it certainly may be used as a guideline for future rulings.
Companies shall pay special attention when receiving a resignation letter, to confirm that it reflects the elements set forth herein.
The attorneys in the Labor and Employment practice group at Basham, Ringe y Correa, S.C. have extensive experience in effective terminations, hence we remain available for any question or comment.
S I N C E R E L Y,
Jorge De Presno