Violation of work discipline – one of the most common reasons for termination, second only to organizational grounds as a “catch-it-all” termination clause when the real termination ground is not sustainable.
Let’s assume a written termination letter, drawn by the employer, with the stated grounds for dismissal “breach of confidentiality”. However, the notice does not describe what the employee did. When it gets to court, the dismissal is invalided, the court holding the termination letter elaborates neither on the confidentiality breach itself nor on the information to be considered confidential. In this practical example, the employer obviously mishandled firing its employee by not paying attention to one of the essential elements of a termination letter- they weren’t specific as to WHY they were seeking the termination.
Getting in is easy…
When an employment relationship is created, the parties enjoy contractual freedom. They can choose when, how, and if they want it to begin. Contrastingly, getting out is a bit more complicated. The Slovak labor law has a protective function. It significantly restricts an employer’s contractual freedom to dismiss its workers; the law presumes the employee to be the weaker party in any labor relationship, and offers protection. To that end, the Labor Code states a number of conditions which must be satisfied for a notice of dismissal to be valid. Though often overlooked by employers, it is not by courts. Frequently in lawsuits for wrongful termination, the court will invalidate the termination, even when only one of the statutory conditions has not been met. Losing employers can be on the hook for wage compensation up to 36-fold of the employee’s monthly salary, a five-digit sum. A painful lesson in not paying attention to details. So, what should employers do to reduce the risk of being sued for wrongful termination?
Getting out? Not so much.
While an employee can give notice of termination for any reason (or even without one), for an employer, it is not as straightforward. The Labor Code prescribes concrete and limited grounds on which an employer may terminate employment. Additionally, to initiate the process, the employer must present the employee with written notice of its intent, clearly and specifically stating the reason(s) for termination. Where an employee violates work rules, the notice must contain an exhaustive description of what the employee did to break the rules, specifically described, including the exact dates, times, locations, and the names of any witnesses. Insufficiency in the notice almost always leads a court to classify such termination as invalid.
On the subject of “delivery” of the notice, the Slovak Labor Code has a few things to say. First, notice must be hand-deliver to the employee. No ghosting, texting, emailing, or phone calls allowed. If the notice cannot be hand-delivered, either at work or the address on record for the employee, then it can be sent by post. To make things extra complicated, an employer has a delivery requirement even if the employee refuses to accept it. In such cases, an employer is advised to keep a contemporaneous written account of the attempt at in person delivery, and have it memorialized by the signatures of at least two witnesses. Such a record is likely to be a key piece of evidence in any subsequent court proceedings, and as the employer has the burden of showing that delivery was affected correctly, it may tip the scales towards victory.
Who can’t be fired? Slovak labor law recognizes a so-called ‘protection period’ which runs from a qualifying event (e.g. temporary incapacity to work, maternity leave). The protection period lasts as long as the condition. Notice of dismissal given to such a ‘protected’ employee would be ruled as void.
Employers should also be careful with employee representatives (trade union, employee council, employee trustee) and members. Termination of employment with notice or with immediate effect by the employer has to be pre-negotiated with these entities, else the termination is not binding. The pre-negotiation, as defined in the case-law, means informing the employee representatives of the contemplated measures, and affording them the chance to comment on the termination. Any comments should be taken into consideration by the employer. When communicating with any employee representatives, the employer’s written pre-negotiation request should contain information on the grounds for termination, or a copy of the termination notice (which should be specific and detailed). Should a court dispute arise, where the employer requested a pre-negotiation but didn’t specify the termination reasons, the court would likely find a wrongful dismissal.
Redundancy may seem the easiest way…
Certain termination grounds, such as redundancy, require the employer to offer an alternative position (provided there is a vacancy). The employer cannot claim no vacancies when simultaneously advertising for applicants. Employers must be careful using this means, as the employee could very easily prove before the court the existence of a vacant job at the employer at the time of dismissal. The employee would undoubtedly be vindicated by the court.
Based Slovak court decisions, an ‘alternative suitable job’ is any job or work (including part-time work), not necessarily identical to that carried out by the concerned employee previously. Nor does the wage have to be the same. The offered position cannot, by law, require the employee to acquire any skills through unreasonable training times or costs, and the employee must meet the medical requirements for such a job. Employers are often unaware that they are obliged to offer any vacant post, even if it means the employee will be downgraded. A frequent problem that occurs in many businesses, especially those with a large workforce or with high staff turnover, is losing track of their vacant posts.
At the same time, an employer need offer only one vacant position to the to-be-dismissed employee, even if more than one needs to be filled. The choice as to which position is at the employer’s discretion. The employer also has to bear in mind that offering of a temporary work, e.g. to fill a position while an employee is absent, may not be sufficient offer of vacant position. Should a court ruling be sought by such an employee for unfair dismissal, the burden of proof lies with the employer. Again, it is strongly recommended that the employer prepare written records of the offer, as well as of the employee’s rejection of the vacant post.
Dot the “I”s and Cross the “T”s.
Doing business always offers challenges. In Slovakia, this is particularly so when it comes to dealing with employees, as the law strongly protects and supports them. Under such circumstances, an employer’s unilateral approach carries risk. Employer is best served by reaching an agreement with the employee. Not only does it stop lawsuits before they start, but it also means no PR problems from disgruntled former employees. As powerful as social media is today, this is a big advantage.
15. Jun 2020 at 6:00