On April 7, 4, the Supreme Court of the Czech Republic (hereinafter referred to as the "SC") issued a resolution under no. stamp no. 2020 Cdo 21/3992, by which he rejected the employer's appeal against the judgment of the Court of Appeal, which concluded that the employer's termination was invalid according to § 2019 letter c) Act no. 262/2006 Coll., Labor Code, as amended (hereinafter referred to as "ZP").
From the point of view of the facts in this case, the employer terminated the employment relationship with the employee first by immediately canceling it (in 2012), which the court ruled in 2014 to be invalid. In the interim, i.e. in 2013, the employer hired another employee in the plaintiff's place (and it follows from the decision that he did not allow the employee to perform his work, even though he announced that he insisted on further employment). Three months after determining the invalidity of the immediate cancellation, the employer adopted an organizational change, which canceled the position held by the employee, and served the employee with notice of employment for this reason, with reference to § 52 letter c) ZP. The Court of Appeal stated that the employer only pretended to take the organizational measure in order to be able to terminate the employment relationship with the plaintiff, whom he no longer wanted to employ.
The Supreme Court rejected the employer's appeal with reference to its older jurisprudence, from which it follows that:
- in the event that the employer's decision pursued goals other than those listed from the beginning, and that the employer was in fact only pretending to adopt an organizational measure (change in tasks, technical equipment, reduction of staff in order to increase work efficiency or other organizational change) with the intention conceal their true intentions, it must be concluded that the decision on organizational change in the sense of § 52 letter c) ZP was not accepted; when assessing what the employer actually pursued with his measure, the employer's actions must always be assessed in their entirety and logical continuity (judgment of the Supreme Court of 28 January 1 issued under file no. 2015 Cdo 21/695);
- the acceptance of another employee to the position vacated by the departure of an employee who was terminated from employment due to redundancy (or the employer filling this position with one of the existing employees) is usually "evidence of the unfoundedness of the reason for termination". It cannot then be said that the employee, or the type of work he performs on the basis of the employment contract has become redundant as a result of the adopted decision on organizational change and that the true reason for the termination of the employment relationship would be the circumstances listed in § 52 letter c) ZP. If, from the point of view of the necessary professional composition of the employees, the type of work performed by the employee does not become redundant (from the point of view of substantive content), there can be no other circumstance consisting of e.g. only in his person or in another organizational arrangement of the employer as a basis for termination of the employment relationship according to § 52 letter c) ZP.
In this case, the NS therefore concluded that questioning the factual conclusion of the appellate court based on the fact that the employer only pretended to adopt an organizational measure in order to be able to terminate the employment relationship with the plaintiff cannot establish the admissibility of the appeal.
In this case, to put it simply, it was a factual situation where the employer had two employees in the same job position - the original one, with whom he had already tried in the past to terminate the employment relationship by immediate termination, and the new one, who was hired in his place (if we proceed from the description of the facts state of affairs, as follows from the aforementioned resolution of the NS). This is a situation similar to the one dealt with by the NS case law mentioned above and b), where the invalidity of the notice given to an employee who returned from parental leave and the employer, according to his claim, did not have a job for her because he canceled her job (the vice president of the People and communication). The employee claimed that her position still existed, it was just renamed (Vice President of People and Assets). NS concluded that the activities performed by the employee before the organizational change implemented at the defendant remained necessary for the defendant as an employer after the effectiveness of this measure (no part of her work was dropped). He considered it proven that the real reason that the employer lost the opportunity to assign work to the employee was the fact that he had hired another employee (for an indefinite period). In this case, the NS concluded that the dismissal was invalid because the employee did not become redundant in terms of the type of work she performed. Organizational change, or a different organizational arrangement, connected with the replacement of the plaintiff's activities by the activities of another employee (who would perhaps also suit the employer better in terms of the requirements for the performance of this work), cannot therefore be the basis for terminating the employment relationship by dismissal pursuant to § 52 letter c) ZP.
If we simplify the NS's conclusions a little to the reason or motivation the employer had for creating an organizational change, as a result of which he declared that a specific employee was redundant for him, then it is evident that the main reason was the fact that the specific employee was for the employer inconvenient, he was not interested in his further employment, and his work, which the employer actually needed, was performed by someone else. Thus, the organizational change was adopted purposefully "tailored" to a specific employee, not because the need for the work he was performing has ceased to exist.
The following can be cited from the NS judgment mentioned above in d and a):
"It is a decision on organizational changes if it followed a change in the employer's tasks, technical equipment, a reduction in the number of employees in order to increase the efficiency of work, or another organizational change with the help of which the employer intends to regulate the number of its employees and their professional or qualification composition……. But in case the decision of the employer (of the competent authority), or by implementing it at the employer, goals other than those listed were pursued from the beginning and that the employer (competent authority) in reality, he was only pretending to adopt an organizational measure .... with the intention of concealing their real intentions, it must be concluded that the decision on organizational change is significant from the point of view of the provisions of § 52 letter c) ZP was not accepted.. “
The conclusions of all three mentioned decisions are in accordance with each other. When making a decision on an organizational change, the employer must really follow the goal foreseen in a general way in § 52 letter c) ZP (that is, to summarise, in the words of the cited jurisprudence and a) – regulation of the number of employees, their professional or qualification composition). If the purpose of adopting an organizational measure is in fact something else (typically the elimination of a problem in the form of an employee who, for various subjective reasons, the employer does not care about), it is not an organizational change in the sense of § 52 letter c) ZP, which could be the basis for a valid termination.
Up to that point, everything sounds logical and the article would not even need to be written. However, it can be traced in the NS jurisprudence yet another line, which the author of this article considers to be at least suitable for reflection in the context of the above conclusions. This line refers to the interpretation of the meaning of the drive to organizational measures (and subsequently to dismissals) as "more distant assumptions and ideas from which the acting proceeds".
By resolution issued on 12 November 11 under file no. 2019 Cdo 21/1011-2019 NS confirmed the validity of the dismissal for organizational reasons in a situation where the employee objected that the real reason or motivation of the employer to adopt the organizational measure was not the reasons mentioned in this article above, but the solution of problematic relations between employees at the workplace. NS concluded that the fact that relations at the employer's workplace were problematic was not the main reason for terminating the employee's employment. Further, however, with reference to the NS judgment issued under sp. stamp 118 Cdo 21/1494 stated that "it is possible that disputes between participants may be a motive or motivation for the adoption of an organizational measure by which the employee's job is canceled, however, this fact in itself does not necessarily mean that its only purpose is to harm him; the opposite opinion would mean that if disputes or disagreements arise in a legal entity between persons participating at different levels in the management of the company, it is excluded in this case to take organizational and personnel measures that would respond to the situation and enable further effective, trouble-free operation. "
Looking at the justification of the cited decision of the NS issued under sp. stamp 21 Cdo 1494/2014, we find that the above conclusion was expressed in a situation where the employer canceled the position of director, with the fact that his work was divided among the executives (the employee was also one of the executives in the past). NS compared the motivation leading to the decision on organizational change, i.e. apparently the fact that it resolved a relational conflict at the workplace and not primarily the unnecessaryness of the activities performed by the employee, "only" with the corrective of good manners. The expediency of the organizational change, or the fact that it was apparently an organizational change adopted to suit the given situation was not emphasized by NS in this case.
Although the main idea of this decision was apparently that it is essential if it is proven that the organizational change was actually implemented and led to the effect anticipated in § 52 letter c) ZP (redundancy of an employee whose work is no longer necessary for the employer), the expression of this idea in relation to the employer's motivations leading to organizational measures is rather dangerous. NS explicitly admitted (or at least it is possible to interpret the reasoning of this decision in this way) that organizational change can be a way (an organizational or personnel measure responding to a given situation) to resolve conflicts between employees at the workplace, which I consider to be a departure from the previous opinion that the organizational change should address purely and only the needs of the employee from the point of view of the professional or qualification composition of the employees at the employer.
Source: epravo
