Reason for termination - does it have to exist on the date of termination?


Either party may terminate an employment contract concluded for a trial period, for a definite and an indefinite period, upon notice. Importantly, in the case of a contract for an indefinite period, the reason for termination or termination of the contract should be indicated. However, does it have to exist on the date of termination? What should the reason for termination be? We explain in the article!

Reason for termination - selection criteria

In the event of termination of the contract for an indefinite period, it is necessary to provide the reason for it. Such a reason cannot be too general, it should be formulated in a clear and specific way. It is also recognized that, in the event of collective redundancies, the employer must adopt the appropriate criteria for the selection of people for redundancy upon dismissal.Although the Labor Code does not specify that the termination of an employment contract should include selection criteria, it will certainly be more difficult to challenge the termination by a labor court in the event of a court dispute.

Providing the selection criterion is not obligatory, but it will be particularly helpful during group layoffs or layoffs of a larger number of people.

An employee selected for dismissal from a given group of employees should be aware of why he was selected. A statement that is too general, e.g. indicating a change in the structure of a department as the reason for termination, may result in an employee's claim and a dispute in court. The selection criteria must therefore be objective, and the employer should take into account such factors as length of service, availability, qualifications, but also the living situation of a given employee. This is confirmed by the judgment of the Supreme Court of December 15, 2004, I PK 97/04: "It is not a sufficient criterion for selecting employees to be dismissed only the amount of remuneration they receive for work, disregarding the level of professional qualifications, length of service and attitude to employee obligations, also when the reason for the dismissal is the necessity to limit employment for economic reasons ”. It is worth mentioning that the criteria relating to the work itself should be superior to the employer, while the private and economic situation of the employee should only be considered in this case as an auxiliary.

Reason for termination - does it have to exist on the date of termination?

Jurisprudence and numerous judgments show that the reason for termination does not have to exist on the day the contract is terminated. The actual reason for the termination of an employment contract is therefore not only the one that exists at the time of submitting the declaration of will to the employee, but also the reason that is to be fulfilled in the near future (e.g. after the notice period has expired), and even less so (decision of the Supreme Court of 11 August 2016, II PK 246/15).

If the reason indicated in the termination does not occur at all, the termination of the contract may be considered as an apparent act.

Can the liquidation be considered a certain and future reason for termination?

In the case of liquidation of an employer or liquidation of a position, we are dealing with organizational changes in the company. The employer is able to anticipate these two situations and plan appropriate job cuts or predict employee rotation. Hence, the provision of an earlier notice will be justified, as the condition of the short-term deadline will be met, i.e., for example, the position will be liquidated in a month. In addition, this is confirmed by the judgment of the Supreme Court of 23 May 1997, I PKN 176/97, in which it was found that the liquidation of a job position as part of actual organizational changes, consisting in a reduction in employment, justifies the termination of an employee's employment contract.

If the termination of an employment contract concluded for an indefinite period or a contract of employment concluded for a definite period occurs due to the declaration of bankruptcy or liquidation of the employer or for other reasons not related to the employees, the employer may, in order to terminate the employment contract earlier, shorten the period of the 3-month notice. , however, up to 1 month.

Similarly, in the event of an employer's liquidation, the employer may terminate the employee's contract even before the company's liquidation, which is confirmed by the judgment of 11 May 2017, II UK 213/16, which indicates that liquidation is a certain process, extended in time. The term "winding-up" is defined as a condition related to the deregistration of activities and the actual termination of activities and, consequently, termination of employment relationships with all employees in order to terminate the activities. In this approach, the liquidation process and the very recognition of the employer as the employing entity suggest that the employer should first terminate contracts with employees, and not the other way around. For if the employer had been liquidated earlier, there would be no entity that could terminate the contracts with employees. Thus, also in the case of the liquidation of an employer, giving notice of termination earlier seems justified.

Start a free 30-day trial period with no strings attached!

Certainty and imminent deadline criterion - how to define?

It is possible for the reason for the termination indicated in the termination to be future. However, it should be remembered that it must be real and set in time. In the event that the event indicated in the termination notice does not take place, e.g. an apparently liquidated position will be filled by another employee in a short time, the termination may turn out to be false, because it will not be related to reality and, consequently, such action may be undermined by the controlling authorities.

Termination of the employment contract - preparation in the system

The system supports employers in the processes of both employment and dismissal of an employee. To end a contract with an employee in the system, go to the PERSONNEL »AGREEMENTS tab, select a given contract and select ADD» ENDING from the top menu.

Depending on the type of contract and the basis for its termination, you must provide the reason for termination of the employment relationship or for choosing a notice period.

The chosen basis for terminating the contract is automatically entered in the certificate of employment. It is also possible to print the end of the contract. All data regarding the termination of the contract will be specified in these documents.

The reason for the termination should be stated clearly and specifically in the termination of the employment contract. It cannot be too general - it is best that the notice should include the criteria used by the employer when selecting for dismissal. Importantly, the case law and numerous judgments indicate that the reason for the termination does not have to exist on the day the employment contract is terminated.