An employee who has been terminated with notice may bring an action against the employer. The scope of available actions depends on the kind of the employment contract which has been terminated.

In case of the employment contract for indefinite time the employee may challenge termination that was unfair or unlawful. ‘Unfair’ means without just cause, e.g. when grounds for termination provided by the employer are untrue. ‘Unlawful’ means violating statutory provisions related to termination, e.g. made otherwise than in writing or during the employee’s justified absence.

The employee who has been dismissed in an unfair or unlawful manner may file for:

  • declaration that the termination with notice was ineffective (as long as the contract is in force) or reinstatement to his or her previous position (when the employment contract has come to an end due to lapse of the notice period); or
  • damages.

The choice of remedy belongs to the employee.

The amount of damages which may be awarded by the court ranges from two weeks’ to three months’ wages, but no less than wages due for the applicable statutory period of notice. The court may award damages even if the employee demanded otherwise if it is found that, despite the termination being unfair or unlawful, it would be impossible or purposeless to continue employment.

A court dispute initiated by the employee may be resolved by means of a settlement, the subject-matter of which may vary, depending on the parties’ mutual arrangements, e.g. it may provide for damages instead of reinstatement or a different manner of termination of employment.

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The employment contract for a trial period may be terminated at earlier notice, duration of which depends on the length of trial:

  • if the trial period does not exceed 2 weeks, the applicable notice is 3 working days;
  • if the trial period is longer than 2 weeks, the applicable notice is 1 week;
  • if the trial period is 3 months, the applicable notice is 2 weeks.

The employer’s or the employee’s declaration on termination at earlier notice must be made in writing, but does not have to indicate grounds for termination. Again, as with the employment contract for definite time, this is more like at-will termination than just-cause termination.

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As a rule, all employment contracts for indefinite time may be terminated at earlier notice (save for a number of instances when termination is prevented by statutory restrictions).

Termination of employment contracts for indefinite time is traditionally just-case termination, meaning that the employer is required to provide a reason for termination, which is true and valid. Otherwise the dismissal will be considered unfair.

There is no definition of just cause in the Labour Code, nor does it provide a list of qualifying reasons. Instead, it is left for the courts (mainly to the Supreme Court) to explain what may and should by understood under just cause justifying termination of the employment contract for indefinite time.

Examples of ‘just cause’ situations include:

  • employee’s negligence;
  • unsatisfactory employee’s performance;
  • unjustified absence from work;
  • breach of the covenant not to compete while the employment contract is in force;
  • absence of required and/or expected qualification or skills;
  • failure to perform the superior’s instructions.

Just cause for termination may be related to the employee or the employer, but doesn’t have to – it may just as well be an event which neither party has got influence on.

Termination of the employment contract at earlier notice is a regular manner of termination, which means that the reason provided by the employer does not need to be extraordinary; it is sufficient that for that (true and valid) reason the employer does not want to continue  employment. This is a consequence of the employer’s right to mould his or her workforce.

IMPORTANT! The employment contract for indefinite time may also be terminated by the employee. However, the employee is not required to provide the reason for termination – such an obligation rests only with the employer.

The declaration on termination at an earlier notice (whether made by the employer or the employee) must be in writing. Additionally, the employer’s declaration must include information of the employee’s right to challenge the termination at court.

The duration of notice periods depend on the employee’s length of employment with the particular employer. I will discuss this in the next entry.

 

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Not all employment contracts may be terminated at earlier notice, whether by the employer or the employee. Because of that I am going to discuss each kind of the employment contract separately.

As a rule, an employment contract for a definite period of time may not be terminated at earlier notice before lapse of time for which it has been concluded (with some exceptions related to collective dismissals).

However, in relation to the employment contract to last longer than 6 months the parties may provide for a contractual clause authorizing either of them to terminate the contract earlier at two weeks’ notice. When this is the case, the contract may be terminated by the employer or the employee any time – it is mostly agreed that “any time” also means before the employee completes 6 months of employment (I used the word “mostly” here because it is the dominating view, also upheld by the Supreme Court, although there are also arguments against it).

Neither the employer nor the employee is required to provide reasons for giving notice. As a result, termination of the employment contract for a definite period of time is more like at-will rather than just-cause termination.

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Termination of employment via a mutual agreement

On March 21, 2011, in Employment contract, by Kalina Jaroslawska

Termination of the employment contract via a mutual agreement of the employee and the employer is a very comfortable means of putting an end to employment, but it’s got one basic shortcoming – you need consent of both parties to get it in place. This is not always possible or easy to achieve, but why not try it first? A mutual agreement of that kind – as all contracts – may be negotiated.

The mutual agreement may terminate any employment contract, without limitations. It gives the parties much freedom in determining terms and conditions for separation:

  • the date of termination may be appointed freely, without any limitations on the period between the date of signing the agreement and the effective date of termination;
  • the moment of termination may be defined not only as a date-month-year date (which is most common), but also by indicating a future event, which the parties intend to trigger termination;
  • the agreement on termination may be concluded under a condition precedent;
  • the parties may agree on additional employee benefits, such as extra severance payments or outplacement programmes.

Termination of employment via the mutual agreement may be effected not only through a written instrument, but also through conduct of the parties, which implies the intent and consent to separation.

Termination of employment via a mutual agreement is recommendable mainly to employers because there are no direct statutory employee claims attached to it (as in relation termination at notice or without notice). Depending on the circumstances, the employee does have an option to challenge the validity or effectiveness of the mutual agreement if it is faulty or deficient in legal terms (e.g. if the employee demonstrates that he or she acted in error under a threat on signing the agreement), but proceedings of that kind are more difficult for the employee.

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