Termination of employment is one of the most frequent subjects of litigation in the field of employment relations. Practice shows again and again that terminating the employment of an employee is not as easy as it may seem. If the employer does not consistently follow the established procedure and fails to prove the fulfilment of the alleged reason for termination, the termination may be invalid with rather draconian consequences for the employer.

Therefore, the safest option seems to be to list all of the employee’s misconduct in the termination notice and thus ensure that the termination notice will be valid – perhaps even fulfilling multiple termination grounds at once. But is it really the best solution? How will the courts assess testimony stating factual circumstances fulfilling multiple grounds for termination? The answer to this question was provided by the Supreme Court in its recent judgment of 21 December 2023, Case No. 21 Cdo 3366/2022.

In the decision in question, the Supreme Court dealt with the case of an employee who worked as a central buyer and whose employer delivered to him a notice of termination on 15 July 2019 (referring to the notice to remedy deficiencies dated 21 March 2019) on the grounds defined in section 52(f) of the Labour Code.

Under Section 52(f), an employer may give notice to an employee if the employee:

• does not meet the prerequisites laid down by law for the performance of the agreed work or
• does not, through no fault of the employer, meet the requirements for the proper performance of that work.

However, if the failure to comply with the above requirements results in unsatisfactory performance, the employer must first give the employee a written notice to remedy it and only if the employee fails to remedy it within a reasonable period of time may the employer terminate the employment relationship by notice.

In the present case, the employee later received another notice of termination on the same day for the same reason, in which the employer specified in more detail the description of the conduct, which he considered to be the fulfilment of that ground of termination.

The employee challenged both terminations in court and sought a declaration that the termination of employment was invalid because the reason for the termination was not sufficiently factually defined, the alleged misconduct was not sufficiently specific and, moreover, most of the listed acts fulfilled a different termination reason than the one stated by the employer – namely, the termination reason under Section 52(g) of the Labour Code.

Notice under Section 52(g) may be given to an employee if:

• there are reasons for the employee, for which the employer could immediately terminate the employment relationship; or
• the employee has seriously breached the obligations arising from the legal provisions applicable to his/her work.

However, in the case of consistent, less serious breaches of these obligations, the law stipulates that the employee must be notified in writing of the possibility of termination within the last 6 months.

The district court dismissed the suit. The regional court upheld the dismissal. And what position did the Supreme Court take?

The Supreme Court first made it clear that the delivered notices were to be treated as two separate legal acts, the validity of which had to be examined separately. It further emphasized that although the grounds for termination of employment under the provisions of Section 52(f) and (g) of the Labour Code constitute two different grounds for termination of employment by notice, it is not impossible for them to be fulfilled simultaneously. In fact, the facts that constitute the fulfilment of these grounds may overlap – the employee’s conduct may fulfil both the characteristics of a termination ground under Section 52(f) of the Labour Code and under Section 52(g) of the Labour Code. All grounds for termination are equal (i.e. none of the grounds listed in Section 52 of the Labour Code has greater force than another), and therefore it is entirely at the employer’s discretion, which of the grounds to choose as the reason for termination.     

According to the interpretation of the Supreme Court, the distinction between these grounds for termination rests on the existence of at least negligent breach of work duties, which is associated with the grounds for termination under section 52(g) of the Labour Code. If there is a complete absence of fault, even if only by negligence, this reason cannot be inherently present, but if the other statutory features are met, the termination ground under Section 52(f) of the Labour Code can still be met.

However, if the employer correctly asserts a valid reason for termination, it is irrelevant whether the facts described in the notice also constitute the fulfilment of another reason for termination, as long as the employee’s employment relationship is terminated on the basis of the asserted reason. However, the Supreme Court has pointed out that if proceedings to determine the invalidity of a notice of termination are brought on the employee’s application, the courts will always be obliged to examine each of the grounds of termination asserted in the notice separately and to assess their effects on the continuation of the employment relationship separately. If any one of them results in the termination of the employment relationship, the other grounds become irrelevant.

In its decision, the Supreme Court unequivocally rejected the formalism that would automatically lead to the invalidity of termination notices containing a description of facts fulfilling more than one of the grounds for termination if the employer invoked only one of them. Nevertheless, it is always advisable for the employer to carefully and unambiguously specify in the notice the decisive facts and the reason for termination, which is fulfilled by these facts, because only in this way it is possible to avoid possible inconveniences associated with an invalid notice.