Labour Code Commentary (Ukázka, strana 99)

Section 52

Part two: Employment law relationship

Health reasons A further two reasons for notice relate to the employee’s state of health, or rather his incapacity to work. For the purpose of serving notice a medical report needs to be issued by the company’s preventive care provider. Without such a medical report the notice is invalid. Should the employer have doubts, it sends the employee to a physician that renders company preventive care services for the employer. The physician is required to issue a medical report (not a general recommendation) in which the physician decides, based on his knowledge of the employee’s type of work, whether the employee is capable of performing his work considering his state of health. Should this not be the case, the employer can give the employee notice under the conditions stated below. Another possibility would be to transfer the employer to another suitable job (Section 41), or the employer can agree with the employee on a different type of work. It is recommended to make reference to the medical report in the notice.

Subparagraph (d) regulates the situation when the employee may not perform his current work owing to a job-related injury or occupational disease or threat of such a disease or if the employee was subjected to maximum permissible exposure.

Compared to subparagraph (d), subparagraph (e) concerns general incapacity to work that is long-term. Should this be the case, the employee cannot perform his current job long-term owing to health problems that are not associated with a job-related injury or an occupational disease. The reason for their incapacity to work is of a different nature, such as a common illness, injury, or common aging.

Related provisions: Section 41 of the Labour Code – transfer to different work

Reasons associated with the employee’s behaviour The reason for notice set out under subparagraph (f) concerns the employee’s abilities and skills in relation to the performance of work. This particularly regards the employee’s failure to meet the prerequisites or requirements for the performance of work.

The prerequisites for the performance of work are stipulated by legal regulations, particularly by special statutes and implementing regulations (e.g. completed vocational training, education, etc.). The employee should have the prerequisites when recruited. It may, however, occur that he does not fulfil such prerequisites owing to a change in legislation or that a legal regulation requires such prerequisites to be renewed (retested) whereby the employee loses them. Save for serving notice, Section 41(2) entitles the employer to transfer the employee for a period of time for which the employer does not have suitable work for the employee, however, for a maximum of thirty days per calendar year.

The requirements are set directly by the employer and they should reasonably correspond to the given type of work. The employer’s requirements should also

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Title IV: Termination of employment law relationship

Section 52

be in place at the point of the commencement of work. Nonetheless, the employer may establish new requirements within the employment law relationship. Where the employer establishes new requirements, the employee should be given reasonable time to acquire the skills to meet the requirement(s).

Failure to meet requirements includes unsatisfactory work results. This is a frequent reason for giving notice, however, it requires that the employer prove the employee’s unsatisfactory work results. Should this be the case, the employer is obliged to establish that it gave the employee a respective work task that the employee failed to do, or fails to fulfil. Where unsatisfactory work results are concerned, the employer cannot give the employee immediate notice of termination; the employee has to be first informed to this effect in writing.

The written warning should present a description of the employee’s unsatisfactory work results in relation to his labour obligations connected with the work agreed in the employee’s employment contract; a reasonable time limit in which to remedy the problem; and a warning referring to the possibility of the employee being given notice in accordance with Section 52(f) should the problem continue even after the lapse of the above time limit.

The employer may give the employee notice only if the employee had been warned about his unsatisfactory work results during the past twelve months prior to being served notice, whereas the employee failed to remedy the problems during a reasonable period of time provided to him.

The reason for notice according to subparagraph (g) lies in the employee’s behaviour; its basic element is fault. In light of the private law direction in which labour law is going the Labour Code replaced the original term ‘work discipline’ with the term ‘obligations arising out of legal regulations relating to the work performed by the employee’.

The following three merits of the case may be identified in connection with this reason for notice: Q a reason for immediate termination of employment by the employer (Section 55); Q continuous less serious breaching of duties and obligations; Q gross breach of duties and obligations.

The employer’s reasons for immediate termination of the employee’s employment are set out in Section 55 and primarily concern breach of work obligations in an especially gross manner and final and conclusive conviction for having intentionally committed a crime. In the given case the employer decided not to give the employee immediate notice but rather notice on the same grounds. Or the employee concerned could not have been served immediate notice due to the employee being pregnant, on maternity leave, or a female or male employee on parental leave.

Further merits of the case depend on the severity of the breach of work obligations.

Labour law differentiates between three intensities of breach of obligations, as follows:

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Section 52 Q Q Q

Part two: Employment law relationship

less serious breach of obligations; gross breach of obligations; especially gross breach of obligations.

Breach of the employee’s obligations Breach of obligations may be deemed breach of the Labour Code, breach of other Acts, implementing regulations, the employer’s internal rules and regulations and the instructions of the employer or managerial employees. The most often breached are Sections 301 through 303. In practice these breaches involve late arrivals at work, failure to adhere to working hours, working under the influence of alcohol, damage to the property of the employer or third parties, failure to obey the employer’s instructions, etc.

The intensity of breach of obligations is not provided generally; it cannot be stipulated in the employer’s internal rules and regulations or in an employment contract. It always depends on individual circumstances, particularly on the extent of the damage that was caused or imminently threatened to happen, breach of obligations, and the employee’s current conduct.

The term breach of obligations (breach of work discipline) may be interpreted using existing jurisprudence. The degree of the intensity (frequency) of breach of work obligations plays a decisive role in regard to the possibility to terminate employment and the method of doing so. Section 52(g) and Section 55(1)(b) differentiate between three levels of intensity of breach of work obligations, namely a less serious breach of work obligations, gross breach of work obligations and breach of work obligations in an especially gross manner (decision of the Supreme Court No. 21 Cdo 3019/2000 dated 12 April 2001). In order for the notice to be valid when given on the grounds of the first level of intensity, it is necessary that the employee breaches his work obligations less seriously on a regular basis. Where the second and the third types of breach are concerned, it suffices if the employee commits a respective breach only once. Jurisprudence first sets down that the term ‘continuously’, or ‘permanently’ (in Czech: soustavně) means that a less serious breach of work obligations must occur at least three times, whereas every instance of such breach may involve different unlawful behaviour (R 52/94).

In practice it is often very difficult to determine which type of breach applies, whether less serious, gross or especially gross breach of work obligations. The Labour Code does not define the term ‘breach of work obligations’. In terms of jurisprudence such breach may be deemed the culpable breach of obligations imposed on the employee, particularly by legal regulations, the employment contract, the employer’s internal rules and regulations and managerial employees’ binding instructions. In practice this usually translates to unexcused absence, alcohol use, culpable damage to the employer, the employee’s conduct during the performance of work, etc.

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