You're fired. How do I defend myself against an invalid notice?
"You are fired. Pack your things and go home." What can you as a fired employee do about it? How can you defend yourself? And what if it's an invalid notice?
What's the right way to give notice?
An employer can only give notice to an employee for reasons set out in law. These reasons are listed and specified in the Czech Labour Code (§ 52). In brief, these are for example:
- the employer or part of it is being closed down,
- the employer or part of it is relocating,
- the employee becomes redundant,
- the employee can no longer perform the work for health reasons,
- the employee becomes medically unfit to perform the work,
- the employee does not meet the legal requirements for the performance of the work in question,
- and others (the rules were abbreviated).
An employer may not give notice to an employee for reasons other than statutory reasons. The notice must be in writing, otherwise it is not taken into account at all. In some situations, the employer is prohibited from giving notice, e.g. when the employee is temporarily unable to work (ill) or when she is pregnant or on maternity leave.
The employer should serve the notice in writing to the employee in person at the employer's registered office.
"Will I avoid being given notice if I do not accept/receive it (refuse to take it over)?" The answer is no. This is because the personal delivery requirement is satisfied (the notice is deemed to have been served) even if the employee refuses to accept it. Therefore, the employer will normally arrange in advance for two witnesses to be present to sign the record of the refusal to accept the notice in such a situation. Delivery may also be made by other means if it is not possible at the employer's premises: by hand wherever the employee can be found; by a postal service provider (at the address noted by the employee in writing to the employer), electronic communications network or service; by the data mailbox.
When does the employment relationship end after I receive notice?
The employment relationship ends at the end of the notice period. This period is legally at least 2 months and can only be extended by agreement between the employee and the employer. The notice period starts on the first day of the calendar month following the date of delivery of the notice. Example: the employee receives notice on 27 March, the two-month notice period starts on 1 April and ends on 31 May.
When is the notice typically invalid? Typically, this will be a situation where the statutory reasons for notice has not been observed or in fact fulfilled, or there are no reasons included in the notice at all.
If a notice is invalid, does it mean that nothing is happening? Does the employment relationship continue like nothing happened? Beware, the employment may not continue automatically (even if the notice was invalid). If the employee does not take any action after receiving an invalid notice, the employment relationship would still end. If the employee does not object, the employment will end at the end of the notice period as if the notice was valid. That is why you need to react quickly.
If the employee considers the notice invalid and wishes to continue the employment relationship, he or she must notify the employer thereof. Thus, the employee must notify the employer in writing, without undue delay after receiving the invalid notice, that he or she insists on continuing the employment relationship.
If the employer nevertheless considers the termination valid and insists that the employment relationship has ended, a defence must be brought - an action for a declaration that the termination of employment is invalid. The law sets a relatively short time limit: 2 months from the date on which the employment relationship should have ended on the basis of the (invalid) notice. That is, on expiry of the notice period. Within this period, the action must be served to the Court (in this case, it must be delivered to the Court).
Wage compensation can also be claimed in these proceedings. The proceedings typically drag on for many months, sometimes even years. The employee is often working elsewhere by this time. However, if the employee wins in the proceedings for the declaration of invalidity of the termination of employment, he or she is entitled to wage compensation equal to the average earnings from the date on which he or she notified the employer that he or she insists on continued employment until the employer allows him or her to continue working or the employment is validly terminated.
Tips at the end - what to watch out for:
1. Be careful what you sign! You are obliged to accept the notice and acknowledge receipt with your signature (in writing: name, date of acceptance and signature), but you are not obliged to sign anything else - no agreements to terminate employment, no agreements to shorten the notice period, etc.
2. If you were given notice for a discriminatory reason (or if the reason given in the notice is legitimate but the "real" reason is discriminatory), the employer has acted unlawfully. Even such a termination is invalid.
3. Watch the time limit for claiming invalidity of the termination at Court - this time limit cannot be extended or waived.
If you have received a notice of termination and are in any doubt, we recommend that you contact an experienced Attorney-At-Law.