It is common knowledge that in a socially oriented state the court will often take the side of the employee. Still, are you aware that, when an employee is challenging his/her termination, the judge may establish that the employee cannot be reinstated for reasons not related to the employee’s misconduct? In that case, the employee might be awarded a compensation in the amount of ten monthly salaries. Valentina Ogarkova, an attorney of Stepanovski, Papakul and Partners Attorneys-at-Law and a legal consultant of the HR Brand Award provides us with the information related.
The first option you may try when you made up your mind to give a notice to an employee, even if he/she negligently performs his/her duties – is to dismiss him/her upon expiry of his/her labor contract.
This recommendation rests upon the objective fact that this approach would help avoid turning the matter into a conflict, and a subjective perception that in this country most suits are adjudged in favor of employees due to technical infringements that are frequently committed by employers.
It is not worth bringing the case to court, even if the person, e.g., has actually disclosed a commercial secret or does not observe workplace discipline. Take a look, when his/her labor contract expires. If soon enough, it is expedient to terminate the employee on such grounds.
If the contract expiry takes too long, you may try terminating the person for cause.
There are a number of such causes. The most common are absenteeism and non-performance.
Each employee should know that all employers should follow the same procedure to carry out termination for cause:
- register the violation (in a report, memorandum or another document)
- request written arguments from the employee
- make a decision on termination for a committed infringement (i.e., issue a termination order in time and according to the law)
Such a termination will always bear a distinguishing feature: it will always be a disciplinary measure.
There are four such measures:
- notice
- reprimand
- denial of additional incentive payments for up to 12 months, in part or in full
- termination of employment
Whatever measure we are going to apply, employers always follow the same pattern of actions. One should keep in mind that the employer has only one month to apply disciplinary actions against an employee, that one cannot apply a disciplinary measure to an employee who is on sick or annual leave. The most important is that more than one disciplinary action cannot be taken against one employee.
Besides, it is always forgotten that disciplinary measure are not applied in retrospect. If the employee has committed a disciplinary infraction, an employer not willing to put up with it, would, absolutely legitimately and at his/her own discretion, apply one of the above-mentioned disciplinary penalties. Regretfully, though, the employer would, after that, often try to review the employee’s previous conduct and find faults, for which the employer would like to bring the employee to disciplinary liability. However, it is totally inadmissible. The time for bringing to disciplinary liability has been lost irretrievably, and new violations must be looked for only after the application of the first disciplinary measure.
Besides, it may happen that the employee is hard to fault and there are no formal causes, but the employer does not need an employee any longer. In that case, the best way out is to try to terminate employment by mutual consent. You may terminate employment of any category – employees on maternity or annual leaves, absentees, anyone – by mutual consent. Regretfully, the Belarusian law does not recognize the institution of severance payment upon such a termination, though there are mechanisms for paying extra money upon termination by mutual consent.
Coming back to violations committed in the termination process, I would like to mention that, besides the aforementioned, employers sometimes confuse termination causes or, e.g., misdate termination papers. For example, a person dates his/her letter of resignation June 15th, while they would like to dismiss him, and they do dismiss him on July 1. The employee may then contest the employer’s actions, as well.
Moreover, many people, for whatever reason, believe that termination requires mandatory work for one month. It is not so: you may terminate employment today and starting tomorrow. However, we should take into account that we should issue final payment and employment record book to the person no later than on the date of termination.
The confusion with obligatory monthly employment is caused by the fact that ordinary people make no difference between a termination at mutual consent and voluntary resignation. As aforesaid, you can always part with a person at mutual request (or, almost always, the exceptions are graduates, obligors, et al.). Only an indefinite-term employment agreement may be terminated for voluntary resignation.
Thus, monthly work is mandatory and conceivable only for voluntary resignation, which is possible only in case of conclusion of an indefinite-term employment agreement. One cannot resign voluntarily when it comes to a labor contract.
Coming back again to violations committed in the termination process, I would like to focus on the following. Regretfully, employees often ask to dismiss him/her on the 15th and does not come to work on the 15th, and then it turns out that the 15th was his/her working day. This understatement between the employee and the employer would often give rise to such a tangle of problems, that in the end the employee and the employer would find themselves in court spending incredible amounts of time and money to prove their vision of the issue, whether there was an absence on the 15th, or not. All that, though there is nothing easier than setting, with the help of your lawyer, a date of termination that it would not cause any ambiguities: “… dismiss on the 15th day … year (last working day) …”
The publication is based on legal regulations in effect as of 23.08.2016.
The article is published at jobs.tut.by.
