In our Czech practice, we rather frequently encounter cases in which employers mistake one ground for termination "unsatisfactory work results" for another "violation of work-related duties".
In the present article, we would like to show what conditions and circumstances must be met for an employer to proceed and give notice of termination because their employee failed to remedy their unsatisfactory work results. In so doing, we also reflect the current decision-making practice of the Supreme Court, which is in line with the recent trend of a "liberalization" of sorts when it comes to the proper interpretation of the Labor Code.
Dismissal from employment is only permissible if some of the grounds are given which are exhaustively listed in the Labor Code. One of the reasons for termination are unsatisfactory work results: for no fault of the employer, the employee fails to meet the requirements for proper work performance because their work results are dissatisfying.
However, employees may only be dismissed on grounds of unsatisfactory work results if the employer first called upon them in writing to provide remedies, within the 12-month period preceding the notice of termination, providing them with a reasonable period for improvement, but the employee failed to make remedies. The period for improvement is "reasonable" if it corresponds to the nature and scope of the shortcomings that are being held against the employee; this period must be set in writing in the letter in which the employer calls upon the employee to make remedies (warning letter).
The grounds for termination are then given as of the moment in which it has become clear hat the employee failed to provide remedies within the reasonable period for improvement (in spite of the warning). But what is this moment? Clearly, it will have occurred if the reasonable period for improvement set by the employer has already lapsed, without the desired result, and the assessment of the employee's work performance has shown that no remedies were made.
However, might it be possible to give notice to the employee on grounds of unsatisfactory work results even before the period for improvement has passed?
The Supreme Court recently addressed this issue, and found that an employment may be validly terminated by way of notice of dismissal on grounds of unsatisfactory work results even before the period for improvement has lapsed, provided that it is obvious beyond contention that the employee will not (and cannot) make remedies during the remaining period for improvement.
Of course, one cannot infer a general rule from this judgment without taking into account the specific circumstances of the individual case, i.e., the nature and number of work tasks left unfulfilled by the employee, the progress which the employee has made so far, the manner in which the given employer rates and assesses the work results of their employees, and, where relevant, the attitude historically taken by the delinquent employee towards their work duties.
While the above-mentioned judgment of the Supreme Court may be interpreted as a certain "slackening of the reins" with respect to the rules which employers must follow when terminating employees for unsatisfactory work results, our advice is to continue to be extremely circumspective when applying these grounds for termination given how often these kinds of cases ends up in court.
Czech Supreme Court judgment 21 Cdo 3795/2017