Unbundling of the employment relationship

Chapters of the article

• Immediate termination of employment
• Termination of employment for minor breaches of employment obligations
• Termination 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.

Immediate termination of employment

On the part of the employee, such a situation can arise if the employer fails to pay his 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 off ence (the Labour Code further specifies this situation) or if the employee has breached his or her obligation under the legislation applicableto the 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 are met, it is possible for the employer to give the employee a conventional notice of termination of employment or to conclude an agreement with the employee to terminate the employment relationship (a “termination by agreement”).

Dismissal for minor breaches of work obligations

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 law, this is justified in the case of a serious breach of work duties, or in the case of a consistent, less serious breach of work duties.

As regards consistent minor misconduct, in practice, depending on the circumstances, this may include repeated late arrivals to 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 nuclear power plant controller should be much more careful), 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 breaches, 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 duties 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.

Termination for unsatisfactory performance

A different reason for termination is termination for unsatisfactory performance or if the employee does not meet the conditions laid down by law 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.