“IN THE CASE OF A CONTINUING VIOLATION, THE SUBJECTIVE DEADLINE FOR SUBMITTING AN EXTRAORDINARY TERMINATION OF THE EMPLOYMENT AGREEMENT DOES NOT START TO RUN ON THE FIRST DAY OF THE UNJUSTIFIED LEAVE”
Employers often find themselves in an unenviable but necessary situation when the only solution is to terminate the employment contract. Pursuant to the provision of Article 109 of the ZDR-1, the latter may terminate the employment contract of the employee in an extraordinary manner, if there are reasons specified by law and if, taking into account all the circumstances and interests of the contracting parties, it is not possible to continue the employment relationship until the termination period expires, or until the time for which an employment contract was concluded. The problem arises when the employer does not know whether he meets all the conditions for giving the employee extraordinary notice or not.
The article in question refers to one of the grounds for termination specified by law, namely the one which stipulates that the employer may terminate the employee’s employment contract exceptionally if the employee does not come to work for at least five consecutive days and does not inform the employer of the reasons for his absence , although he should and could do it. The onus is on the employer to give an extraordinary notice within the statutory deadline, as otherwise the notice is considered illegal.
ZDR-1 in paragraph 2 of Article 109 stipulates that the employer must give an extraordinary termination of the employment contract no later than 30 days from the determination of the reason for the extraordinary termination and no later than six months from the occurrence of the reason. Many employers do not know when the 30-day subjective term starts to run, so many times they do not give notice at all, even though all the conditions for it are met. In the event that the employee does not come to work for at least five consecutive days, the deadline does not begin to run on either the first or the fifth day (unless the employee was unjustifiably absent from work for “only” five days). Jurisprudence has taken the position that, in the case of an ongoing violation, the subjective deadline for submitting an extraordinary termination of the employment contract for each new absence begins to run again from the day of this absence.
Therefore, if the employee was absent from work from 01.01.2022 to 15.01.2022, and for each of the unjustified absences it would be considered that the defendant found a violation related to this absence on the same day, the notice would still be given within the 30-day period regarding all absences from work in the period from 01.01.2022 to 15.01.2022, even though it is 10 working days.
Why is it not correct to count the subjective deadline from the first day of absence?
It cannot be considered that the employer established a reason for extraordinary termination of the employment contract on the first day of unjustified absence from work. During the first five days, the employer can only determine that the employee is absent from work, but not that he is unjustifiably absent in the following days. The subjective term for terminating an employment contract cannot begin to run before the objective term begins to run, but it starts to run only from the occurrence of the reason (that is, in the case of at least five consecutive days of unjustified absence of the employee).
Why is protection necessary in the event of an employee’s absence?
Prior to extraordinary termination, the employer must, in accordance with the provision of paragraph 2 of Article 85 of the ZDR-1, inform the employee in writing of the alleged violations or the alleged reason for incapacity and allow him to defend himself within a reasonable time. At the defense, the employee can present the employer with a medical certificate that would justify the employee’s entire absence from work. In this case, the extraordinary termination of the contract would be illegal, as the reason for the employee’s absence could also be justified sick leave of the employee.