He shared real examples: a blank page turned into a pretext for terminating an employment contract
According to the Head of the Labor Law Department of the State Labor Inspectorate, Chief Labor Inspector Ieva Piličiauskaitė-Dulkė, when terminating employment relationships with employees, employers do not always behave fairly towards the employee and sometimes do not follow the provisions of the Labor Code (DK):
“In labor cases regarding the recognition of dismissal as illegal, it was repeatedly established that employers do not follow Article 55 of the Labor Code. “Termination of the employment contract at the initiative of the employee without important reasons” 1 d. established imperatives, i.e. the mandatory requirements of the employment contract termination procedure, according to which the employee had the right to terminate the employment contract on this basis, submitting his request for the termination of the employment contract.
There are various situations where the employee learns about the termination of the employment relationship accidentally after a certain period of time has passed, for example, while on vacation or during sick leave. The employee explains that he did not write a request for termination of the employment contract, but then it turns out that when concluding the employment contract and signing other documents, he also signed a prepared sheet for termination of the employment contract “of his own free will”, and then the employer only entered the date of termination, it seems, a lawyer shares examples of incredible audacity, but completely real.
Thus, employees are primarily advised not to sign the declaration forms provided by the employer, or to sign them only after the employee has familiarized himself with their contents and the contents of the forms are clear. Also, the employee should not sign documents without text, the so-called blank documents, which the employer could use, for example, by recording the information that the employment contract is being terminated or to be granted unpaid leave.
Pretend redundancies are illegal
According to the interviewee, one of the grounds for terminating the employment contract at the initiative of the employer is when the work function performed by the employee becomes redundant for the employer due to changes in work organization or other reasons, otherwise it is called downsizing. This is only possible if the changes in work organization are real. “There are cases when a fictitious reduction of positions is carried out – an employee is dismissed, and after his dismissal, another person hired or the employer publishes an announcement that an employee is needed to perform the function that was considered redundant. An employee who believes that the employment contract is being terminated illegally has the right to apply to the Labor Disputes Commission in accordance with the procedure set forth in Part IV “Labor Disputes” of the DK, says I. Piličiauskaitė-Dulkė.
When does the employer generally have the right to terminate the employment contract? According to the labor law specialist, before terminating the employment contract, the employer must have a basis for terminating the employment contract. It is extremely important that, for example, an employee’s long or frequent unemployment or retirement age is not a basis for terminating the employment contract, so the employment contract of such an employee can only be terminated on the general grounds established in the DK.
Amount of severance pay: how much money is due in different cases
The terms of the notice of termination of the employment contract and the amount of severance pay depend on the basis of the termination of the employment relationship, the duration of the employment relationship and other matters.
“Let’s say if the employment contract is terminated “of one’s own will” (Article 55 of the Civil Code), the severance pay is not due, but if it is “of one’s own free will”, but for important reasons specified in Article 56 of the Civil Code, then the severance pay is due, the amount of which is one or two average wages, depending on how long the employment legal relationship lasted.
Upon termination of the employment contract by agreement of the parties (Article 54 of the Civil Code), the parties are free to agree on the payment of severance pay. A common question is “what is the maximum amount of severance pay that can be agreed upon?” When limitations are not set by special laws, the parties are free to negotiate on the amount of compensation. However, in such cases, it is recommended for institutions supported from the state or municipal budget to contact the institution implementing the rights and duties of the owner of the institution for certain decisions related to the use of budget funds”, – information on the amount of payments is provided by I. Piličiauskaitė-Dulkė.
The employee’s departure “of his own free will” must indeed demonstrate his will
What to do if there is pressure in the workplace to leave work “of their own accord”, even though the employee does not have such a desire? According to the interlocutor, when terminating the employment contract “of his own free will” or “by mutual agreement”, the expression of the employee’s will to terminate the employment contract, and not the will of the employer, is of decisive importance.
“Whether there is an employee’s true will to terminate the employment relationship is determined from the circumstances, form and other specific data of the employee’s declaration of will. The employee’s will to leave the employment relationship must be formed freely, without illegal influence. Such influence is understood as interference by the employer against the law in the formation of the employee’s will. Thus, the employer does not have the right to demand or otherwise influence the employee to write or sign a request to leave work voluntarily according to Article 55 of the Labor Code. or an agreement to terminate the employment contract by agreement of the parties in accordance with Article 54 of the DK.” If the employee still feels pressured to write a statement regarding the termination of the employment contract, he can apply to the VDI territorial department with a complaint about possible manifestations of psychological violence.
If the employee signs a statement to terminate the employment contract in accordance with Article 55 of the Labor Code after a conversation with the employer, he may withdraw the statement no later than three working days from the date of its submission, except in cases where the employment contract has already been terminated. Later, he can withdraw the statement only with the consent of the employer.
It is possible to initiate the termination of the employment contract during vacation
There are cases when the employer makes a decision to terminate the employment contract with the employee due to the fault of the employee, Article 58 of the Labor Code. on the basis that the employee does not agree to the termination of the employment contract “of his own free will” or “by agreement of the parties”.
“If he does not agree to terminate the employment contract, the employee can apply to the Labor Disputes Commission with a request to declare the dismissal illegal. Then the employer must prove the presence or absence of certain factual circumstances. In this case, the labor dispute commission will assess the circumstances of the termination of the employment contract, which are significant for the legality of the termination of the contract, and make a decision,” the labor law expert says about the process, not agreeing to the dismissal.
If, on the day of termination of the employment contract, the employee is temporarily unable to work or has taken leave granted to him, the day of termination of the employment relationship is postponed until the end of the temporary incapacity for work or vacation. In this case, the day of termination of the employment relationship shall be considered as the first working day after the end of the temporary incapacity for work or vacation. However, Article 65 of the DK Paragraph 6 provides for exceptional cases when the day of termination of the employment relationship is not postponed until the end of the temporary sick leave or vacation, that is, when the employment contract is terminated by agreement of the parties; employee initiative; upon expiry of the fixed-term employment contract.
The warning must be in writing
If the Labor Code or other laws establish the employer’s obligation to warn the employee about the termination of the employment contract, this warning must be given in writing. The employer can theoretically give the employee a warning that the employment legal relationship is terminated, Article 57 of the DK. on the specified grounds both during the employee’s incapacity for work and during his vacation, but the employee is not obliged to accept it. Also, the employee is not obliged to come to the workplace to sign documents when he is issued a certificate of incapacity for work or is on vacation. Thus, when submitting documents in accordance with Article 25 of the DK 2 d. during the employee’s sick leave or vacation, it is necessary to obtain written confirmation from the employee that such documents have been received.
Without approval, the employer could hand over the documents when the employee returns to work. The dismissal procedure is provided for in Article 57 of the DK. provisions cannot be violated. In case of violations, according to I. Piličiauskaitė-Dulkė, the employee can initiate a labor dispute regarding the right.
“In addition, based on Article 61 of the DK 3, with employees raising a child or adopted child, the employment contract may not be terminated on the first day of the child’s third birthday at the initiative of the employer, if there is no fault of the employee, except when the employment contract is terminated without the employee’s consent to the continuity of the employment relationship in the case of the transfer of the business or its part, or when a court or employer’s body makes a certain decision.
An employment contract with an employee raising a child or adopted child under the age of three may be terminated by agreement of the parties. The parties to the employment contract, terminating the employment contract on this basis, have the right to agree on the payment of compensation to the employee acceptable to both parties,” the interviewer assures. VDI has prepared a memorandum that provides the grounds for dismissal, notice periods and what severance pay is awarded in a specific case of dismissal.
Tags: Tricks employers promise signing terminating employment contract
