Supreme Court confirms strict rules for serving notice of termination
Under the Labour Code, employers must deliver documents by which an employment is terminated to their employees primarily in person, at the workplace, at their residence or wherever the employees can be found. Only of this is not possible may employers deliver the documents by mail. Recently, the Supreme Court dealt with the practical implications of this rule. Its subsequent verdict is rather strict on employers.
In the case in question, an employer first attempted to deliver a notice of termination to an employee at the workplace. However, the employee was on vacation that day, and the personal delivery was not successful. Still on the same day, the employer sent the notice of termination to the employee by mail. The mail carrier did not find the employee at home and the letter was deposited at the post office, where the employee did not collect it within the stipulated deadline. The employer considered the notice of termination delivered, by a legal fiction of delivery. The employee challenged this in court.
At the core of the dispute was the question whether it had indeed been impossible to deliver the notice of termination to the employee in person, i.e. whether the employer had had the right to proceed with the delivery by mail. The law does not provide any detail specification of this precondition, therefore the Supreme Court offered its own interpretation. It stated that in each specific case it was necessary to consider whether the employee had been objectively reachable, whether the employer had attempted to deliver the document in person, what the reason of failure had been and whether it would have made sense under the circumstances to make another attempt to deliver, how urgent the delivery of the written document had been, and whether it had been reasonable to expect that a delivery by mail would be more successful than a repeated personal delivery. The court also emphasised that the purpose of the legal regulation was to make sure that employees actually receive the written document – as it was not just about observing the formal processes, which in this case obviously would not have been able to meet the pursued objective.
In the case in question, the employer had only attempted to deliver the notice of termination to the employee once, on a Friday, even though being aware that the employee was at the time on vacation. The mail posted on that day could not have been delivered earlier than on the following Monday. According to the Supreme Court, the employer did have the opportunity to attempt a repeated personal delivery at any place, even on the weekend or on the following Monday, when the employee was due back at work. The court thus concluded that the conditions for the delivery by mail were not met in the case in question, and the delivery had no legal effects.
The decision places rather strict demands on employers: to proceed with delivery by mail, they first have to “chase” the employees even outside the workplace, possibly even before or after their working hours. In practice, a single attempt to deliver at the workplace may not suffice. This situation may be improved by the extensive amendment to the Labour Code, currently being discussed by the government – under the amendment, to be able to proceed with delivery by mail, it would suffice that the employer has attempted to deliver the document at the workplace; it would no longer be necessary to investigate the possibility to deliver the documents in person, at the workplace or elsewhere. However, even under the amendment, a single attempt to deliver may not be sufficient.