There are several ways to terminate the employment relationship. However, there are also many restrictions associated with termination of employment. In this blog, we’ll look at another of these, which is immediate termination and dismissal for unsatisfactory performance.
Most of these restrictions are mainly related to the employer, who cannot give notice to an employee without good cause, and the employee cannot just leave overnight, but remains bound by the notice period. We have already dealt with notice in more detail. Let’s now look at other ways.
One of the most common ways of terminating employment is a severance agreement, which allows both the employee and the employer to terminate by mutual agreement. This procedure is often used in situations where the parties want to avoid complications associated with notice periods or disputes over termination grounds.
On the part of the employee, such a situation may arise if the employer fails to pay his or her salary or wages even 15 days after they are due. The second reason is a serious threat to the employee’s health and the impossibility of performing suitable work.
In these cases, although the employment relationship ends immediately, the employee is entitled to be paid by the employer a salary or wage equivalent to the average monthly earnings for the normal period of notice.
There are also two grounds on the part of the employer, namely if the employee has been convicted of a deliberate criminal offence (the Labour Code further specifies this situation) or if the employee has breached his or her obligation under the legislation applicable tothe work he or she performs in a particularly serious manner. In the latter situation, the law really emphasises the characteristic “particularly gross”. Thus, a serious or less serious breach of duty is not sufficient. For example, an unexcused absence from work of more than five days will always constitute a particularly serious breach of an employment obligation. Other such situations could be, for example, theft of the employer’s property, embezzlement of the employer’s money or deliberate damage to the employer’s equipment.
Even if the grounds for immediate termination of employment by the employer are met, a termination agreement may be proposed as an alternative, which in practice often avoids disputes and court battles.
When you quit your job, we can help you defend yourself against your employer’s actions and make sure you get everything you’re entitled to from them. This includes, for example, any wages or severance pay you are owed. We provide assistance throughout the country and at a predetermined price.
In practice, situations arise more often when an employee does not go to the above-mentioned extremes, but nevertheless a breach of work duties occurs. If the situation reaches a certain intensity, the employer may terminate the employment.
In the words of the Labour Code, this is justified in the case of serious breaches of work duties, or in the case of persistent, less serious breaches of work duties.
As regards consistent minor violations, in practice, depending on the circumstances, this may include, for example, repeated late arrivals of the employee at work, smoking in the workplace, violation of set rules, etc. When examining the intensity of the breach of work duties, account must be taken, inter alia, of the position held by the employee (e.g. a controller in a nuclear power plant should be much more diligent), the degree of culpability, the amount of potential damage, etc.
If the breach of duty is to be minor but consistent, then the ‘three times and enough‘ rule applies. There must therefore be at least three infringements, which may be of a different nature. However, there should be a relatively close temporal link between them, which is assessed on an individual basis. For example, an employee arrives late for work at the shop twice in January and then in February is found to be taking private calls and not serving customers during working hours.
In order for a termination for these less intense infractions to be valid, the employee must first be shown to have received written notice of the possibility of termination (called a “reprimand”). The employer must have reprimanded the employee for the violation within the six months prior to the termination and accurately describe the violation in the reprimand. A dismissal can only follow if the employee breaches his or her obligations again, even if he or she has already been formally warned.
Finally, the employment relationship may be terminated two months after the date on which the employer became aware of the reason for termination and not later than one year after the date on which the reason arose.
In order for an employer to be able to reproach an employee for unsatisfactory performance, let alone terminate his employment for that reason, the cause must not be the employee himself . For example, the employer has not supplied the necessary machinery, has not trained the employee or has objectively determined the task to be impossible.
If the court subsequently assesses the termination of employment in this way, the employer’s subjective assessment of the employee’s performance is not a priori decisive factor. It may well be that it will take a different view to that of the employer, that it will consider other circumstances (including those which the employer neglected or failed to consider) and will find in favour of the employee that the unsatisfactory performance was not due to him and that there is no reason for dismissal.
If the employer and employee want to avoid complications, they can use a model termination by agreement, which clearly defines the terms of termination and avoids the risk of either party breaching its legal obligations.
A different reason for termination is termination for unsatisfactory performance or if the employee does not meet the legal requirements for the performance of the agreed work.
However, unsatisfactory performance is primarily defined by the employer. It may set certain standards for performance. However, while it is primarily up to the employer, he should be aware that performance may also be judged to be unsatisfactory from an objective point of view. In other words, his reasons will stand up to judicial scrutiny. At the same time, however, it is also true here that the employee must be invited to remedy the situation and warned in advance that the employer is not satisfied with his work. All this within the last twelve months at the latest.
When you quit your job, we can help you defend yourself against your employer’s actions and make sure you get everything you’re entitled to from them. This includes, for example, any wages or severance pay you are owed. We provide assistance throughout the country and at a predetermined price.
Ondřej is the attorney who came up with the idea of providing legal services online. He's been earning his living through legal services for more than 10 years. He especially likes to help clients who may have given up hope in solving their legal issues at work, for example with real estate transfers or copyright licenses.
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