6 Termination of Employment
6.1 Do employees have to be given notice of termination of their employment? How is the notice period determined?
Notice of termination must be given in written form, except in case of expiration of an employment contract concluded for a definite period of time. The employment contract may be terminated regularly, with a notice period, or extraordinarily, with immediate effect. The minimum length of the notice period in case of termination of the employment contract by the employer is set down by the law, and in some cases also by the collective agreements or employment contracts. In case of the termination for business reasons or for reasons of incapacity, the notice period depends on the number of years the employee has been with the employer. Instead of a notice period, monetary compensation can be agreed.
6.2 Can employers require employees to serve a period of “garden leave” during their notice period when the employee remains employed but does not have to attend for work?
Yes. However, when sending them on a garden leave, the employers must ensure that the employee’s dignity is respected in order to avoid any lawsuits claiming mobbing. During garden leave, the employees are entitled to their full salary.
6.3 What protection do employees have against dismissal? In what circumstances is an employee treated as being dismissed? Is consent from a third party required before an employer can dismiss?
Employers can only terminate an employee’s employment contract in case there is a substantiated reason for that, namely a business reason, a reason of incapacity or for reasons of culpability (this can result in both regular or extraordinary termination of the employment contract). After being dismissed, the employees may claim illegality of the termination of the employment contract in front of the competent labour court and demand reinstatement in the company.
If the employee demands so, the employer must invite the trade union to the procedure (if present in the company, their presence is a prerequisite in case of the dismissal of larger numbers of employees) and if the trade union opposes the termination for reason of incapacity or for a reason of culpability, or if it opposes the extraordinary termination of the employment contract, and if the employee requests from the employer the suspension of the effect of the termination of the employment contract due to the given notice, the termination of the contract shall not be effective until the expiration of the term for arbitration and/or judicial protection.
6.4 Are there any categories of employees who enjoy special protection against dismissal?
Employees protected against termination are members of the works council, a workers’ representative, a member of a supervisory board representing workers, a workers’ representative in the council of an institution and an appointed or elected trade union representative, older employees, parents on parental leave and one month therafter, and all through the period of breastfeeding (for women), and disabled employees. Certain conditions must be fulfilled for each of these categories to enable the employer to terminate their employment contracts.
SOURCE: Employment & Labour Law 2012, ICLG
Authors: Miha Mušič, Vladka Plohl