Employee's Defence in the Procedure Prior to Employment Contract Termination by the Employer

Procedural constraints for the employer intending to terminate the employment contract, are also indicated in the employee’s right to defend himself or herself. The purpose of this right is to allow the employee to present his or her position and perspective on the accusations. In this way, the employee can be heard and the employer can accept the right decision to terminate the employment contract or to impose other sanctions. Since the employee’s defense is reeasonable only in cases in which the reason for termination of employment contract is on employee’s side, either because of the violation of his or her obligations or because of inadequately completed work, it is compulsory only in some cases, in the case of extraordinary termination and in the case of ordinary termination for reasons of incompetence or misconduct, and in my opinion also for reason of unsuccessful completion of a probationary period. For the employee to be able to defend himself or herself, the employer must acquaint him or her with the alleged violations or inadequately completed work and provide him or her with the opportunity to defend himself or herself within a reasonable time period. However, the employer has no obligation to produce any evidence as in judicial proceedings. The employee’s defence procedure must be in compliance with all procedural requirements stated above, since the violation of these requirements can cause the unlawfulness of the termination of the employment contract. A labour court adjudicating on the lawfulness of a termination of the employment contract is very strict in examining whether the employer had given the employee an opportunity to defend himself or herself and whether proceedings were performed properly. Labour court also interprets narrowly the employer’s possibility not to provide the employee with an opportunity to defend himself or herself. Since a violation of the proceedings with employee’s presenting his or her defence prior to termination of the employment contract can cause the unlawfulness of the termination, it is not only in the employee’s interest to perform the proceedings lawfully but also in the interest of the employer, even though it is primarily intended to protect the employee’s position as a weaker party in the employment relationship.

Key words: procedure prior the employment contract termination, employee's defence, written allegations, invitation for the employee to defend himself or herself, lawfulness of the employment contract termination, absence of a defense