May 05, 2020
The Labor Law and the case study of Croatian courts apply very strict formal rules that must be followed when terminating an employment contract. Sometimes terminations of employment contracts are essentially valid, but they still fall in court due to procedural errors. It is always necessary to pay attention to the following:
- Validity of reason for cancellation
There are different types of dismissals that depend on the specific facts of each case. If the employer gives a business-related dismissal, that is, cancels due to technical excess, change of organization or introduction of new technology, the employer must prove in court that due to these changes the need for a certain job has really ceased. If he fails to do so, he bears the risk of losing the dispute. If, however, the employment contract is terminated because of the employee’s mistakes, the difference between wrongful and extraordinary dismissal must be understood, and in addition, it must be proven in court that the employee is genuinely guilty of violating the employment contract.
- Explanation of the decision to terminate the employment contract
The validity of the reason for cancelation from point 1 must be described in detail in the explanation of the decision to dismiss, otherwise the employer bears the risk of losing the dispute. In practice, we often encounter terminations of employment contracts that are insufficiently reasoned, which is why the employer in the end cannot prove the validity of the reasons for termination. For this reason, it is extremely important that any decision to terminate the employment contract is thoroughly explained and in detail.
- Consultation with the workers’ council
Every employer that employs over 20 workers must have an established workers’ council, or a trade union commissioner in the function of the workers’ council. Before making a decision on dismissal, the employer must necessarily consult with the workers’ council on dismissal, by submitting to the workers’ council a draft decision on termination of the employment contract, as well as the reasons for termination of the employment contract. The failure of the employer to do so automatically leads to the unlawfulness of the decision to terminate the employment contract.
- Social criteria
When an employer who employs over 20 workers gives the so-called business-related dismissal (often called technical excess) the employer cannot terminate the employment contract with anyone, but is obliged to adhere to the so-called social criteria. Social criteria are applied to the so-called comparable workers, that is, workers working in the same or similar jobs. Social criteria are divided according to the years of service, age of the worker and his support obligations that are on his burden.
For example, a worker who is 58 years old, has 30 years of service and still has to support a sick wife could not be legally dismissed if the employer could have terminated the employment contract with a younger worker with less work experience and no support obligations. In certain cases, it is possible to prescribe performance as an additional criteria for dismissal, but such criteria should not be intended to circumvent the use of social criteria. If the rules described here are not followed, the employer bears the risk of losing the litigation.
- Adherence to legal deadlines
If the employer gives the so-called extraordinary dismissal, that is, dismissal due to the most serious violations of the employment contract, the employer is obliged to give such dismissal within 15 days since the day when he learned of the reasons for such dismissal. This means that the employer must prove in court not only that the employee has indeed roughly violated the obligations under the employment contract, but also that he must prove the exact moment when he learned of such facts. It is only for this reason that many, otherwise quite justified dismissals, have fallen in court.
On the other hand, if the employee wants to protect his rights and contest the dismissal in court, the employee must, within 15 days of receiving the decision on dismissal, submit the so-called request for protection of rights. If the worker does not do so, he loses the right to contest the termination of the employment contract forever. After submitting a request for protection at work, the employee has a further 15 + 15 days to challenge the dismissal in court, otherwise he loses the right to challenge the termination of the employment contract forever. In practice, many workers lost otherwise well-founded lawsuits precisely because of the violation of the stated deadlines.
Other
In case of termination of the employment contract, it is always necessary to check what exactly is written in the Work regulations and the Collective Agreement, if it applies. It would also be advisable to consult with a lawyer specialized in labor law for the purpose of a thorough analysis of the case.
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The information in this article does not constitute legal advice in relation to a specific legal issue, but rather general legal information published for information purposes.
