It has been common practice for employers to give notice of termination, “for good measure”, to an employee who was already dismissed on the spot. This may however backfire.
Most employers will in the course of their business encounter situations in which employees violate their statutory duties under laws and regulations applicable to their work performance. It is then upon the employer to decide how to resolve such situations, i.e., whether the employee’s infraction is of such intensity as to make their further employment undesirable. Depending on the gravity of the employee’s breach of work duties, the employer has the choice between immediate termination (summary dismissal) or termination for cause (i.e., giving notice).
In practice, it may prove difficult to properly assess the intensity of a breach of work duties, and the employer may find themselves unable to categorize the breach (as a particularly gross breach, gross breach, etc.). Not a few employers respond to the issue by terminating the employee immediately and simultaneously, on the same grounds giving notice of termination for cause. In this way, these practically-minded employers believe they can mitigate the risk of a court annulling the summary dismissal. If the summary dismissal is found null and void, the regular termination for cause will kick in (or so they hope) and the employment of the delinquent employee will thus end no later than upon the lapse of the regular notice period.
We advise all employers against this particular method, given the applicable Supreme Court case law. Back in 2019, the Czech Supreme Court ruled that it was not admissible for an employer who wishes to summarily terminate the employment of an employee to simultaneously give regular notice of termination on the very same grounds, “for good measure”. This is because, according to the Supreme Court, the concurrence of summary dismissal and termination for cause means that the commencement of the notice period is being suspended, depending on an uncertain event whose occurrence (or moment of occurrence) is unknown. However, the commencement of the notice period is in turn decisive for, among other things, the time limit during which the terminated employee may file action for nullification of their termination. Given the mandatory, non-negotiable character of these statutory provisions, the Supreme Court concluded that a termination of employment which is made conditional upon the outcome of another legal act is invalid. I.e.: If an employer summarily dismisses an employee and at the same time “for good measure” gives notice of termination, then that notice is void. If the immediate termination of employment is eventually found unlawful, one cannot rely on the second notice that was given “for completeness’s sake” – for it is null and void – and the employment relationship thus continues to exist.
Consequently, employers who are faced with the need to assess the intensity of employees’ breaches of duty ought to pay heed and carefully consider whether the actions of the employee in question really qualify as a particularly gross breach of discipline of the kind which would entitle the employer to immediately terminate the employment relationship. If the employer is unsure as to the gravity of the breach, prudence suggests that the “safer” alternative should be chosen, i.e., regular termination for cause. Where an employee is guilty of several breaches, one might want to consider summary dismissal on grounds of any of these, keeping the others “in store” for a potential regular termination down the road. The reverse alternative is also conceivable: give the employee notice of termination first, and dismiss them on the spot afterwards (ideally based on different grounds).
In any case, the termination of employees should always be approached with great circumspection, weighing all options and carefully considering whether the burden of proof with respect to the employee’s breach of duty can be borne. Depending on the employer’s line of business, breaches of duty of employees may have wildly varying consequences and degrees of intensity; because of this and when in doubt, it is advisable to err on the side of more moderate forms of termination, not least with a view to the protection which employees enjoy under Czech labor law. Entering into a mutual agreement on termination with the respective employee is ultimately always the preferred option.
Source:
Labor Code (Act No. 262/2006 Coll.)
Supreme Court judgment 21 Cdo 3541/2019 of 11 December 2019