In an interpretative decision dated 01.02.2021 the Supreme Court of Cassation (“SCC”) reviewed the termination of an employment agreement by the employer, when:
- the employee does not have the necessary education or professional qualification for the performed work;
- a change of the requirements for performance of the work is at hand, if the employee does not comply with them;
- qualities of the employee for effсient performance of the work are not at hand.
Why was the decision of the SCC necessary?
The court practice was contradictory regarding the problems about:
- The difference between the lack of necessary education/professional qualification for the performed work and non-compliance with the requirements for performance of the work
According to part of the court decisions:
The two grounds concern a change in the requirements for holding of a certain position, after the employment relation has occurred. However, the case of a lack of necessary education or professional qualification concerns only the change of these two requirements. And the non-compliance with the requirements refers to any other requirements necessary for the performance of the work.
According to other court decisions
Both grounds for dismissal represent a possibility for dismissal of an employee who does not comply with the requirements for holding of a particular position. The difference is whether the employment agreement is signed upon initial non-compliance with the requirements for holding of the position or these requirements are subsequently changed.
- The reasons in the employer’s order of in case of lack of qualities of the employee for efficient performance of the work
According to part of the court decisions:
The missing qualities shall be explicitly specified in the order for dismissal together with the ground itself. Facts and data related to the assigned work shall also be specified.
According to other court decisions:
It is not required that the order contains all or some of the specific facts and circumstances that have motivated the employer to assume that for a significant period the employee has demonstrated the lack of any individual quality.
How does the SCC answer the three particular questions?
- Is the ground “the employee does not have the necessary education or professional qualification for the performed work” at hand, if the employee does not have them when upon signing of the employment agreement the requirements for education or professional qualification:
- Were introduced by the employer;
- Were legally provided.
If upon signing of the employment agreement the employee does not comply with the requirements for education or professional qualification for the performed work, introduced by the employer, the employer shall not be entitled to dismiss later the employee on that ground.
However, if upon the signing of the employment agreement the employee does not comply with legally provided requirements for education or professional qualification for the work performed, that may be grounds for the employer to dismiss the employee.
Reasons:
- The employer establishes in the job description and/or the staff list the minimum requirements for education/professional qualification which are not legally provided.
- The employer may establish even higher requirements than the legally provided ones. The employer may also assume that the employee’s education and professional qualification are suitable for the position and/or the employer’s needs.
- The signing of an employment agreement upon initial lack of compliance with the employer’s requirements for a given position is not an obstacle to the existence of the agreement itself.
- If upon the signing of the employment agreement the employer has agreed that the employee’s education and/or the qualification is not an objective obstacle for the performance of the work, the employer later cannot terminate the employment agreement because of the lack of education/professional qualification for holding of the position. Such a dismissal would be abuse of right under the Constitution.
- However, if the employer has agreed that the employee’s education or professional qualification are enough for the performed work, but it appears that the requirements for holding of the respective position are legally provided, that would make the keeping of the employment relation impossible.
- In the above case the employer may request from a court to declare the employment agreement invalid.
- The employment agreement which has not been declared invalid with an entered into force court decision, can be terminated by the employer on any of the grounds of the Labor Code. The lack of the necessary education or professional qualification for the performed work is one of the grounds.
- When the requirements for education or professional qualification have been established by law, and the employer finds that the employee does not have them, but after the beginning of the employment relation, he may dismiss on that ground. In this case, the employer exercises powers in compliance with the requirements of the law.
- Which change of requirements may justify dismissal due to a change in the requirements for holding the position if the employee does not comply with them? Change of all requirements or without the change of education and professional qualification?
According to the SCC, the ground “change of the requirements for the performance of the work” refers to the change of all the requirements for holding the position, except for those for education and professional qualification.
Reasons:
- The lack of the necessary education or professional qualification and change of requirements are two close but separate grounds for dismissal.
- The need to differentiate between the two grounds also arises from the fact that in case of “change of the requirements for holding the position” mandatory preliminary protection of the employee is provided.
- In the event of a lack of the necessary education or professional qualification, the change refers directly to the requirements for education and professional qualification.
- And in the case of changing the requirements – these are all other professional requirements – work experience, additional new knowledge and skills necessary for the performance of the job function.
- Is the employer obliged, upon termination of the employment agreement on the ground of “lack of qualities of the employee for effective performance of work”, to specify in the order the missing qualities of the employee?
The employer is obliged in the dismissal order on the ground of lack of qualities to specify the missing qualities of the employee for efficient performance of the work. The employer can enumerate them or by indicate the way the employee handles the assigned work.
Reasons:
- The lack of quality means permanent inefficient performance of work in time, quantity or quality. Inefficient performance should be caused by a lack of qualities for performance of the work.
- The missing qualities mean a factual lack of knowledge, skills and habits for performance of the work.
- The termination of an employment agreement should be in writing – with a motivated order of the employer.
- The ground for the termination of the employment agreement is an essential element of the reasons of the employer’s order.
- The employer’s order must be individualized. By indicating the reason, the necessary individualization is achieved. The general ground of “lack of qualities for performance of the work” should be individualized.
- Any individual type of non-performance, as well as any individual lack of knowledge, skills or habits, could lead to termination of the employment agreement. The individualization requires that the employer specifies the factual reason for termination of the agreement.
- The above is in compliance with the principles of guarantee and protection of the right to work and legal establishment of the grounds for dismissal. The right to defense follows the exercised right to dismissal. But in order the employee can exercise his right of defense, the employer must specify the factual ground for dismissal.
The purpose of the law is that the employee can exercise his right to defense. This is achieved when the employer enumerates in the order the missing qualities or indicates the way the employee handles the assigned work.
