...in Accordance with Section 73a Article 2 of Labour Code
Verdict of the Supreme Court of the Czech Republic file no. 21 Cdo 2376/2015 of 5 May, 2016
The Supreme Court addressed a question whether an employee may be dismissed in accordance Labour Code after they have been removed from a position of a manager provided that a deal was made stipulating that should such situation occur the employee in question will be reinstated to their original position.
Section 73a Article 2, the Labour Code, stipulates that the employment may not terminated by removal of the employee from their post of a manager – the employer is obliged to offer them a change in their job position appropriate to their health status and qualifications. The employer’s inability to comply or the employee’s refusal to take up such a post results in an obstacle on the part of the employer and, at the same time, in the notice being given on the grounds of redundancy. The corresponding redundancy payment is only to be paid if the reason for the dismissal is an organisational change leading to a cancellation of the manager’s position.
An employee who worked in the employer’s firm prior to their appointment to the managerial post may negotiate an agreement with the employer that should they be removed or resign from their office, they would be reinstated to their original position. Such an agreement is, then, binding for the employer.
The Supreme Court concluded that an employee who has negotiated the aforementioned agreement may NOT be dismissed of in accordance with Section 73a, Article 2, of the Labour Code on the grounds of a fictional reason of dismissal in accordance with Section 52, Article C (i.e. for the reason of redundancy).
Should the employer intend to terminate the employment in spite of the above, they may only do so on a basis of a mutual consent, or, alternatively, meet legal requirements for another reason for the dismissal and also expect to be obligated to offer a redundancy payment.
