Are you aware of the most common mistakes made when terminating an employment relationship? This article presents the 5 most common reasons for invalid termination of employment by the employer.
The Labour Code is based on the principle of protecting the status of employees as the weaker party to the contractual relationship. It is therefore only possible for the employer to terminate the employment relationship in certain cases precisely defined by law and subject to relatively strict formal conditions.
The Labour Code recognizes four (4) methods of termination of employment by the employer, namely:
- termination of employment;
- immediate termination;
- termination of employment during the probationary period; and
- agreement on termination of the employment.
If the conditions set out in the Labour Code are not met for a given method of termination of employment, the court may (if the employee has brought the claim in time) declare such termination of employment null and void.
Authors
Milina Schifferdeckerová
Senior Manager, Legal
Andrej Žabka
Consultant, Legal
In the following section, we highlight the most common mistakes made by employers in
the termination process:
1. Failure to comply with the written form
You may have seen a scene in a movie where an employer fires an employee "on the spot," informs the employee in the office between "four eyes," or tells the employee over the phone. The employee then walks out of the employer's building with a box of personal belongings. Such a procedure is not possible in our country. A valid notice of termination or immediate termination of employment requires strictly written form and proper delivery to the employee. Failure to comply with the written form and defects in service result in an invalid termination of employment. Therefore, it is not possible to terminate an employee's employment on the basis of a verbal announcement solely; compliance with the written form of notice or immediate termination of employment will always be required.
Important note: The Labour Code stipulates a written form for termination of employment during the probationary period or termination of employment by agreement, but it does not penalize non-compliance with it by invalidity. Therefore, it is also possible to validly terminate employment during the probationary period by verbal form or by email, however, the employer risks being fined by the relevant Labour Inspectorate for non-compliance with labour law regulations. For reasons of legal certainty as well as compliance with the law, it is therefore recommended that any method of termination of the employment relationship be in writing.
2. Failure to comply with the offer obligation
For certain grounds of termination (such as redundancy of the employee or loss of the employee's ability to perform his/her previous job), the employer is obliged to offer the employee another suitable job before the actual delivery of the termination notice. This alternative work must be appropriate to the employee's qualifications and health and must be in the same place as agreed to be his/her place of work. The case-law of the Supreme Court of the Slovak Republic shows that it is not necessary for the employer to offer the employee all vacancies that are suitable for the employee. It is sufficient if the employer offers the employee at least one suitable job. In practice, we often encounter the omission of this offer obligation, which may lead to an invalid termination of the employment relationship. The moment of fulfilment of the offer obligation is also decisive for a valid termination of the employment relationship.
Tip: If you are terminating an employee's employment by giving notice due to, for example, redundancy, be sure to offer the employee another suitable job first. The offer of another suitable job can also be fulfilled verbally (i.e. the Labour Code does not require a written form, although for reasons of legal certainty a written form is preferable). However, it is important to be able to prove that the offer has been fulfilled. For this reason, it is advisable that at least two persons other than the employee are present when the offer obligation is fulfilled in order to testify in possible legal proceedings that the offer obligation has been fulfilled before the actual delivery of the notice.
3. Omission of employees' representatives
If there are employee representatives at the employer (works council; employee trustee or relevant trade union body), the termination notice / immediate termination must be discussed with them in advance (before delivery) in order for the termination to be valid (i.e. there must be an exchange of opinions, a dialogue).
Tip: If you have a works council and you do not have an agreement with the works council members on who can act and on what matters, we recommend that you discuss the termination with all works council members and draw up minutes of the meeting.
Important notice: If you are terminating the employment relationship with a member of the employee representatives, the consent of these employee representatives is required for a valid termination of employment, i.e. an exchange of opinions (discussion) is not sufficient, as is the case with "classic" employees.
4. Termination prohibition
The Labour Code protects employees in certain critical life situations where there is a prohibition on unilateral termination of employment by the employer. Such situations include, for example, periods
- when an employee is found temporarily incapacitated;
- when an employee is pregnant, etc.
If the employer served notice to such an employee during the so-called protection period (even if the other conditions for the validity of the notice were met), the termination of employment would be null and void. The Labour Code also provides exceptions where the prohibition of termination cannot be fairly required from the employer. This is the situation where, for example, the employer is liquidated without a legal successor.
5. Absence of a ground for termination
The written notice of termination by the employer must contain, inter alia, a precise specification of the ground of termination which cannot be interchangeable with any other ground of termination. A common mistake made by employers is either the entire absence of a ground for termination in the notice or a vague definition of the ground.
Important note: A clear definition of the reason for termination is also crucial for the termination process. Therefore, it will not be sufficient for a proper termination of employment if the ground for termination is a breach of work discipline. The Labour Code defines different legal regimes and possible forms of termination for serious and less serious breaches of labour discipline.
Are you planning to terminate an employee's employment but are not sure whether you meet all the conditions set out in the Labour Code? We will be pleased to help you with the analysis and possible preparation of all necessary documentation. Do not hesitate to contact us.
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