The Czech Labour Code (Act No. 262/2006 Coll., as amended, hereinafter the “LC”) offers a number of ways for employers, who are dissatisfied with employee's work performance, to terminate such employment. In all cases however, employers need to make it entirely clear whether the termination of employment relationship is due to (i) employee's unsatisfactory work performance, as consequence / reflection of the fact that the employee fails to meet requirements for proper performance in agreed position, or (ii) due to a breach of some of the employee's obligation(s) arising from statutory provisions and relating to work being performed.
With regard to the difference between the employee's unsatisfactory work performance, as defined above, and a breach of obligation(s) on the part of the employee, the decisive criterion is, according to relevant case law, whether employee's actions may be characterized as a breach of labour obligations for which the employee is culpable – in such cases, where relevant conditions are met, the employer would be entitled to terminate the employee's relationship unilaterally for breach of obligation(s) (cp. Sec 52 g) or Sec 55 (1) b) LC).
With regard to employee's unsatisfactory work performance (point (i) above) as grounds for serving a termination notice by the employer, it is not necessary for employees to breach any of their obligations relating to work performed by them (point (ii) above); it is not essential whether employee’s unsatisfactory work performance is caused by employee’s incompetence, incapacity or general approach to work etc. It is essential however that unsatisfactory work performance is objectively provided and such absence of quality in terms of work results persists; it is not possible to terminate employment by notice given by employer, according to Sec 52 f) LC, in case of a one single unsatisfactory work result. Employees may be, on the hand, performing their work unsatisfactorily even though they continue to fulfil all obligations relating to their work.
Formally, before an employer may terminate employment relationship due to employee’s unsatisfactory work performance according to Sec 52 f) LC, the employer needs to notify (and invite) the employee in writing to rectify their failure to meet relevant requirements for the position they hold (which are the cause for employee’s unsatisfactory work performance) within a reasonable period of time; such notification must be made within the last 12 months prior to termination notice being served and the employee must subsequently fail to rectify failures specified therein. According to relevant case law, employers need to specify in such notification / invitations the actual shortcomings in employee’s work that need to be rectified within a specified time-frame. If the employee temporarily rectifies his unsatisfactory work performance, but the same shortcomings (unsatisfactory work performance) appear again within the next 12 months from the original notification, the employer does not need to issue a new / separate notification and may proceed to terminate.
In the event of employment termination unilaterally by employer due to the breach of employee’s obligation(s) (hereafter the “breach of obligations”) arising from statutory provisions and relating to work performed by him (point (ii) above) (formerly known as ‘work discipline’), the LC differentiates between three levels (degrees) of intensity of breach:
- Breach of obligation(s) by employee in an especially gross manner – in such cases the employer is entitled to terminate employment relationship either immediately (Sec 55 (1) b) LC) or by giving termination notice (Sec 52 g) LC);
- Serious breach of obligation(s) by employee – in such cases employer may only give notice of termination of employment (Sec 52 g) LC);
- Ongoing but less serious breaches of obligation(s) by employee – in such cases employer may give notice of termination of employment relationship provided that the employer notified the employee in the last six months of this possibility in writing (with regard to breach of some obligation relating to work performed by this employee) (Sec 52 g) LC);
According to relevant case law, “ongoing” breaches of obligations mean that the employee breached some of his obligations arising from statutory provisions and relating to his work at least three times and that there exists an adequate temporal connection between these breaches.
When evaluating intensity of employee’s breach the court will not be bound by employer’s evaluation that may be possibly arising from the employer’s internal regulations. The intensity of breach shall be evaluated by the court primarily on the basis of (including but not limited to) employee’s person and work position, employee’s approach to fulfilment of work tasks, the time and situation in which employee breached these obligation(s), the employee’s intention or negligence, manner and intensity of a concrete breach of obligation and consequences and the damage arising from such breach.
Employers may give termination notice, for breaches of obligations ensuing from statutory provisions concerning work performed by an employee, to employees or to immediately terminate employment relationship only within a period of two months from the date on which the employer learned of the reason for giving notice or for immediate termination of employment. Where breaches of obligations arising from employment are committed by an employee who is abroad, the employer may give notice to employee or to immediately terminate employment within a period of two months from the employee's return from abroad, however no later than within one year from the date on which the employee's conduct constituted the reason for notice or immediate termination of the employment (cp. Sec 58 (1) LC).
Furthermore (if applicable), the employer is obliged to consult (any) notice of termination or immediate termination of an employment relationship with trade unions in advance. Additional conditions apply in case of termination of employment relationship of employees who are/were members of the trade union bodies operating within the employer's undertaking.