Employers, when considering parting ways with an employee, often ponder on the mode to terminate the employment contract. A common reason for these considerations is the possibility of qualifying the employee’s behaviour as a serious breach of basic employment obligations, which allows for termination of the contract in disciplinary proceedings.
The Labour Code does not provide clear answers regarding the catalogue of such breaches, which means that each case should be individually analysed and assessed.
The reason for terminating the employment contract
An employer who terminates an employment contract with an employee based on Article 52 § 1 point 1 of the Labour Code is obliged to state the reasons for their decision in a statement. Importantly, the circumstances indicated by the employer are subject to examination by the labour court in case of dispute, and the employer is deprived of the possibility of later invoking other reasons that may justify the termination of the employment contract in the discussed mode.
It should also be remembered that termination of the employment contract without notice due to the employee’s fault cannot take place more than 1 month after the employer becomes aware of the circumstances justifying the termination of the contract. The one-month period begins from the moment the employer obtains sufficiently credible information justifying the belief that the employee has committed misconduct justifying immediate termination of the employment contract with them.
Conditions for disciplinary dismissal
According to case law, the concept of “serious breach of basic employment obligations” should be understood as consisting of three elements.
The first is the unlawfulness of the employee’s behaviour, meaning a violation of the basic employee obligation consisting of behaviour contrary to the rules arising from labour law regulations, which may constitute both an action and an omission.
Secondly, there must be a breach or at least a threat to the employer’s interests. Sufficient is broadly understood threat, even if no damage has actually been caused to the employer.
The third aspect is culpability, including both intentional guilt and gross negligence on the part of the employee.
Why it’s worth considering?
So-called disciplinary dismissal is the most severe way of punishing an employee. None of the regulations require its application, and thus it is up to the employer’s decision whether to terminate the contract with the employee while observing the notice period or to apply disciplinary proceedings or other possible legal measures such as disciplinary penalties.
“Escape” on annual leave
Undoubtedly, an aspect in favour of terminating the employment contract under Article 52 of the Labour Code is the possibility of terminating the employment contract even during the employee’s leave or other justified absence from work. This also means that an employee who breaches their employment obligations cannot evade responsibility by taking annual leave.
What about flawed disciplinary action?
An employee with whom the employment contract has been terminated without notice in violation of the provisions on termination of employment contracts in this mode is entitled to a claim for reinstatement to work under previous conditions or for compensation, which generally amounts to the remuneration for the notice period.
In addition to the above consequences, the employer is liable for unlawfully terminating the employment contract without notice on the basis of civil law provisions when their action consisted of intentional violation of the provisions on termination of employment contracts in this mode. In such a case, the amount of compensation due to the employee may be significantly higher than the limits specified in the Labour Code.
Summary
In the event of premises for so-called disciplinary dismissal, the decision whether to take advantage of this possibility lies with the employer. However, it is worth remembering that this method of terminating the employment contract constitutes the most severe consequence for the employee and is associated with an increased risk of the employee pursuing additional claims. Therefore, before making this decision, it is worth verifying whether the behaviour in question can be considered a serious breach of basic employment obligations, among other things, to avoid long court disputes.
If you have any questions in this regard, we encourage you to contact us.
Author:
Maria Aleksiejak, Trainee attorney-at-law (PL)