How to defend the testimony on the hour

Chapters of the article

• Grounds for immediate termination of employment
• Two months to give notice per hour
• Necessary written form
• How to defend immediate termination of employment?

Grounds for immediate termination of employment

An hourly notice of termination is considered a very exceptional method of termination. Similarly to a probationary notice, an immediate termination of employment will also occur in this case. Unlike termination during the probationary period, in this case, a reason must be given to justify the immediate termination.

The employer may terminate the employment relationship immediately if the employee has been convicted of a deliberate criminal off ence and sentenced to a term of imprisonment of more than one year. It may also dismiss the employee immediately if he or she has been convicted of a deliberate offence committed in the course of his or her employment and sentenced to a term of imprisonment of at least six months. An employer may also give an hourly notice to an employee if he or she “breaches an obligation arising from the legislation relating to the work he or she performs in a particularly serious manner“. As with a traditional dismissal, the reason given must be defined by the employer in such a way that it cannot be confused with another. For example, an unexcused absence from work of more than five days will always constitute a particularly serious breach of employment.

Even if the grounds for immediate termination of the employment relationship are met, it is possible for the employer to give the employee a traditional notice of termination of employment or to conclude an agreement with the employee to terminate the employment relationship (a ‘termination by agreement’).

Two months to give notice per hour

An employer may fire an employee no later than two months from the date he or she becomes aware of a fact that may lead to immediate termination. Therefore, if the notice is given after two months, it would be invalid and the employee could successfully claim to continue working.

The employer is also limited by a time limit of one year from the date on which the reason for the termination of employment arose. Therefore, if the employer did not become aware of the reason for termination until two years later, it would not be able to give notice for an hour.

Necessary written form

The New Civil Code (NCL) has brought many changes, especially to civil and commercial law. Initially, a completely new Labour Code was supposed to be a subchapter of it. This concept did not pass in the end, but we are nevertheless also seeing partial changes in labour law. Especially in areas that are directly linked to the Labour Code.

A major novelty was the possible breaking of the two-month time limit for challenging a termination of employment.

Generally, if the employment relationship was terminated in a disputed or hostile manner, the two-month period runs from the date on which it should have ended. During this short period, the employee must, for example, bring an action to challenge the invalidity of the termination in question. If he or she does not bring an action, the court cannot annul the dismissal, even if it was completely nonsensical and invalid from the outset.

However, in accordance with the Civil Code, the Labour Code states that certain termination legal actions are not taken into account. These are termination of employment, immediate termination of employment or termination of employment during the probationary period made otherwise than in writing. The consequence of a formally incorrectly executed notice is not its nullity, but even more serious “apparent” (or nullity).

The apparent legal act does not exist, no one has to respect it and it has no legal consequences. Therefore, you do not have to claim the apparent legal effect in court within the two-month period, but you can defend yourself at any time afterwards.

How to defend an immediate dismissal?

We have already mentioned in the previous paragraphs that the employee has the possibility to file a lawsuit within two months from the date on which he or she receives the immediate termination of the employment relationship to declare that the termination is invalid. Typically, it can be argued that there has been no particularly serious breach of the employment obligation which justified the employer’s termination.

If the employee disagrees with the hourly notice, it is up to him to defend himself. The first thing he must do is to tell the employer that he insists on continuing to employ him. If the employer still insists that the termination is justified, the employee will have to pursue his or her rights in court. This can only be brought within two months of the date of service of the notice. If the employee misses this deadline, he or she will not be able to succeed in the dispute. In the proceedings, the court will assess the validity of the dismissal and whether the statutory conditions have been met. The employee could also be awarded wage compensation for the time he or she was unable to work.

The Labour Code sets out precise formal requirements for termination of employment. Therefore, we cannot recommend the model forms available on the internet. Both the employer’s and the employee’s termination may be found invalid precisely because of the use of a model termination form and may ultimately lead to the expenditure of considerable sums of money to be paid to the other party.