Art. 328 of the Labour Code (LC) regulates in detail the cases in which the employer may terminate with notice the employment contract of an employee. This focuses on the employee’s lack of qualities to perform the job efficiently.
The provision of Art. 328 para. 1(5) of LC states that the employer has the right to terminate the employment contract by giving written notice to the employee if the employee does not have the qualities necessary for the efficient performance of the job. What specific conditions or criteria need to be included in the termination order to ensure its legality and validate the termination itself? The Supreme Court of Cassation, answers this question in Decision № 107 of 12.10.2023 in Case No. 4351/2022.
The cassation appeal in the cited case was allowed on the question whether the employer is obliged to state factual circumstances in the termination order under Article 328, para. 1(5) of the Labour Code.
In the termination order under Article 328 para. 1(5) LC, the employer is obliged to list what knowledge, skills or habits the employee lacks or to indicate what the persistent inefficient performance of the work consists in – the way the employee copes with the work in terms of time, quantity or quality.
The Court clearly distinguishes disciplinary misconduct from lack of merit and emphasizes that the commission of a disciplinary offence is not equivalent to a lack of merit and as such cannot be regarded as grounds for termination of the employment contract under Article 328, para. 1 (5) LC. The Court noted that the reference to “dishonesty amounting to breach of trust and disloyalty” in the the employment relationship did not fulfil the constituent elements of Article 328, para. 1 (5) LC.
This judicial case law serves as a valuable guide for accurately and legally drafting documents related to the termination of an employment contract.
