When can an employer “fire” an employee?

In this article, we focus on an unpleasant event in the employment relationship, i.e. the termination of employment by the employer and its legal pitfalls. Giving notice to an employee without any reason is not an option. We know from our experience that an employer’s carelessness in dismissing an employee can boomerang back on the employer and become very expensive.

When is a dismissal invalid?

First of all, the notice must be in writing. Moreover, the employer is very limited and can only give notice to the employee for the reasons set out in the Labour Code, otherwise the notice is invalid. The reasons must be clearly described, a mere reference to the law is not sufficient. The conduct of the employee that led to the dismissal must also be clearly defined. Again and again, employers are advised to seek advice before giving notice. It is often possible to reach an agreement and avoid most problems. If this cannot be done, a reason is sought to justify the termination of employment.

The most common reasons for termination of employment by an employer

Organisational changes:

In times of economic crisis, the most common reason for termination of employment is “redundancy”.

If an employer wants to use this reason validly, he must make an “organisational change”. Typically, this involves merging “teams” or outsourcing part of the services. The decision on organisational change must, by nature, be taken first, before the notice is given. It does not have to take a specific form (e.g. minutes of a management meeting), but it must be demonstrably communicated to the redundant employee. Moreover, there must be a causal link between the organisational change and the redundancy of the employee and the organisational change should actually lead to a more efficient operation of the company. There are simply fewer jobs that fewer people can handle.

Misconduct:

Another reason may be a violation of “work discipline,” i.e., an employee’s duties. For this reason, it depends on the intensity of the violation. Being 10 minutes late to work is a different thing than, for example, a fist fight with a colleague (with a few beers in him). If the breach of discipline is serious or even particularly serious, the employer has the option of terminating the employment relationship outright. All an employee has to do is “break the chain” just once.

A serious violation is, for example, unauthorised prolonged absence from the workplace, or it can be alcohol consumption, violent conflict between employees, etc. In most cases, however, the intensity of the violation is not sufficient. In such a case, the employer may use a termination ground consisting of a continuous less serious breach of the employee’s duties.

However, the following conditions must be met:

1. Minor misconduct by the employee. In practice, depending on the circumstances, this may include, for example, repeated late arrivals to work, smoking in the workplace, minor infractions against set rules, etc.

2. Consistency of violations. The “three times and enough” law applies, i.e. if there are at least three minor infractions. However, these may be different. However, there should be a relatively close temporal link between them, which is assessed on an individual basis.

3. A written warning of the possibility of dismissal (a ‘reprimand’). The employer must reproach the employee for the breach within the last 6 months before the dismissal and describe the breach precisely in the reprimand.

4. Compliance with the subjective and objective time limits. The employment relationship may be terminated 2 months from the date on which the employer became aware of the reason for termination and no later than 1 year from the date on which the reason arose. For example, an employee played computer games consistently during working hours, but the employer only found out about this after many months.

Unsatisfactory work performance:

This is a reason affecting the “incapacity” of the employee. For example, if the employee fails to follow a set schedule. An employee can be dismissed for this reason if he or she has been asked in writing to remedy the deficiencies within the last 12 months but has not remedied them within a reasonable time. However, the employer’s right to impose work tasks is not without limits. The tasks must always be appropriate to the type of work agreed, achievable and the employer must create suitable conditions for their completion.

Non-compliance:

Non-compliance is a slightly different reason for termination. This is for example a situation where the employee (driver) loses his driving licence and is therefore of no use to the employer. However, there may also be other requirements, such as language skills. However, the employer must always give the employee the opportunity to complete the requirements.

How can the employee defend himself?

If the employee considers that the employer has wrongly applied the termination ground in question, he or she can defend himself or herself by bringing an action for the invalidity of the termination before a court. It must be brought within two months of the date on which the employment relationship should have ended by the termination. This usually means within two months of the expiry of the notice period. We recommend that you consult a lawyer for each reason for termination. The employee can claim compensation of up to many times his average earnings (the longer the dispute, the higher the compensation can be, often reaching hundreds of thousands).