Or what are the grounds for unilateral termination of the employment contract by the employer
The employment contract is the oldest and most common form of occurrence of an employment relationship and it applies whenever other ground is not specifically regulated by the law. Following the constitutional principle of protection of wage labor, the legislator provides a number of provisions to defend the relationship between the employer and the employee, arising on the basis of a concluded employment contract.
The legislation about the termination of such relationships is regulated by the Labor Code, where the common grounds (mutual agreement and unavoidable necessity) are exhaustively listed, as well as those for which the will of only one of the two parties will be sufficient. Undoubtedly, the possibilities for the employer to terminate unilaterally an effective employment contract are more limited than those in favor of the employee.
Dismissal with notice
The law provides two groups of grounds, as distinguishing criteria is the need to send a notice. It is typical for the dismissal with notice that after the expiry of the notice period, the employment contract is terminated automatically without need of a further action by the employer. In case that either party fails to meet the deadline, this party owes compensation in the statutory amount. The employer can dismiss with notice both fixed-term or permanent employment contract. In the first case the parties can agree on notice of 30 calendar days to 3 months unlike the fixed-term employment contract, where the term is legally defined – 3 months, but not more than the remaining term of the contract.
The grounds for dismissal with notice could be on grounds, relating to both the employer and the employee, as the common between them is that they are not related to the fault of the employee.
Reasons, related to the employer.
The reducing of the volume of work and stay are among the most common reasons, which determine the choice of the employer to deprive the workforce of one or more of their subordinates. In reducing the volume of work there is an objective condition, where for various reasons the employer cannot burden the employee with sufficient amount of work and this inevitably leads to a reduction of the production. These reasons are always external to the enterprise, such as a decline in the demand, introduction of competition, loss of markets, and they are characterized by the presence of expectation the condition will be overcome.
The stay as a ground for dismissal with notice is a work stoppage for more than 15 days. It is expressed in the temporary inability to perform the activity of the enterprise, of a part of it or of a certain position, as it can be due to organizational, technical and other reasons. According to the court practice, the expected stop of work cannot be a ground for dismissal.
There is a specific ground for dismissal with notice, which applies to commercial companies and the presence of e concluded management contract. The manager in a limited liability company, respectively the executive director in a joint-stock company acquires the right to impose dismissals in order to select the team, with which to achieve the business task of the enterprise, which is assigned to them with this contract, but this right is limited in several ways:
- It applies only to the current employees by the management of the enterprise once
- It can take placed until the expiration of 9 months from the beginning of the performance under a management contract
- The right arises from the conclusion of the management contract, and not of its entry in the Commercial Register
Among the grounds for dismissal with notice are the cases, where objective reasons require closure of the enterprise, part of the enterprise or staff cuts (position closure), as well as when the position, occupied by the employee must be released in order to be restored a unlawfully fired employee, who had occupied the same position before.
Reasons, related to the employee
These hypothesizes suggest the presence or absence of facts of the reality that are in close connection with the employee and are relevant to the performance of their work function. Among them are the lack of necessary skills or education (professional qualification) for effective performance and the employee’s refusal to follow the enterprise or its subsidiary, where they work, when it is moved to another location or area.
Of great importance for the practice is the ground for dismissal with notice, concerning the circle of persons, who have acquired the right for pension for retirement and age, as well as professors, associate professors and PhDs, who have reached the age of 65.
Dismissal without notice
The protection function of the labor law is most widely expressed within the limits that the law imposes on the employer in the exercise of its right to terminate the employment contract without notice.
The law lists exhaustively the cases, in which the employer could require the dismissal of their employees, as deviations are not allowed.
Among the grounds of such a dismissal are the hypothesizes in which the employee is sentenced by a sentence entered into force, which imposes a penalty of imprisonment or deprivation of the right to exercise a particular profession, as the latter can be imposed by a penal provision for committed administrative violation.
Without any doubt the reason that most often causes labor disputes, is the disciplinary dismissal. It represents the most severe penalty and can be used only in severe violations of labor discipline, which are exemplarily listed in the LC.
- Delays or premature leaves of work, as they have to be at least 3 of the total number, each at least 1 hour, and to be within 1 month
- Absence from work for 2 consecutive days
- Systematic violations of labor discipline – system means at least three, as it is irrelevant whether these violations are of the same type, as long as one of them is not extinguished by prescription
- Abuse the trust of the employer, as the abuse must be conscious, desired and achieved with misconduct
- Intentionally defrauding citizens, as the other workers and employees of the enterprise are not covered
- Participating in games of chance via telecommunications means of the employer
- Other serious violations – SCC considers as such appearance at work drunk, caused significant damages to the employer, physical and mental violence by a teacher on student etc.
The disciplinary dismissal is a right of the employer and it must be imposed by them in compliance with the criteria of the LC – the severity of the violation, the circumstances, in which it has been committed, as well as the conduct of the worker or the employee. This discretion of the employer is subject to the judicial review in proceedings for unlawful dismissal.
The article has been published in Bulgarian, in Capital Daily.