The Supreme Court of the Czech Republic (hereinafter referred to as the Supreme Court of the Czech Republic) issued a judgment on 31 January 1 under file no. 2019 Cdo 21/2676-2018, by which he dismissed the plaintiff's appeal against the judgment of the Court of Appeal in the matter of the action to determine the invalidity of the employer's termination pursuant to Section 223 letter f) Act No. 52/262 Coll., Labor Code, as amended (hereinafter referred to as "Labor Code"). The trial court upheld the claim, determining that the notice was invalid. In its decision, the Court of Appeal changed the judgment of the court of first instance by dismissing the claim. The employer's termination was thus found to be valid after the appeal was rejected by the Supreme Court of the Czech Republic.
The employee worked as a legal clerk at the public prosecutor's office and had already successfully passed the final exam. Her employment was concluded for an indefinite period. The activities that a legal tenderer is authorized to perform within the scope of his type of work are regulated in the provisions of § 33, paragraph 7 of Act No. 283/1993 Coll., on the Public Prosecutor's Office, as amended (hereinafter referred to as the "Act on the Public Prosecutor's Office") . The work of a legal clerk consists of performing simple actions of a public prosecutor or administrative activities under the guidance of a public prosecutor or another professional employee of the public prosecutor's office. In criminal proceedings, the public prosecutor may, according to the aforementioned provision, entrust a legal guardian with representation during an individual act of this proceeding. In the proceedings before the court, the legal assistant can represent the public prosecutor only before the district court.
If the employment relationship of a legal intern does not end in another way regulated by the Labor Code, it ends no later than the day that precedes the day that was set as the day of starting to perform the duties of a public prosecutor. A citizen of the Czech Republic who is capable of legal acts, of good character, has reached the age of at least 25 on the date of appointment, has obtained a university education by studying a master's degree program in the field of law at a university in the Czech Republic, has successfully passed the final exam, can be appointed as a public representative. his moral qualities give a guarantee that he will fulfill the position properly, and he agrees to his appointment to the position of public prosecutor and to the assignment to a certain public prosecutor's office. The number of public prosecutor positions is limited, and not every legal candidate or applicant for the position of public prosecutor who meets the stated prerequisites for the performance of the position is appointed public prosecutor. Specific jobs at individual public prosecutor's offices are filled on the basis of selection procedures. The legal regulations do not impose an obligation on legal tenderers to participate in selection procedures, nor a deadline by which they should succeed in a selection procedure at the latest and thus end their employment relationship as a legal tenderer precisely by taking up the position of public prosecutor.
In the adjudicated case, the legal assistant was dismissed from her employment pursuant to § 52 letter f) of the Labor Code for the reason that she was repeatedly unsuccessful in several tenders announced over the course of several years to fill the position of public prosecutor, from which the employer attributed her insufficient professional knowledge. He was also supposed to make sure of her professional shortcomings by testing (finding out the level of her knowledge) as part of the "interview" that took place with her at the regional prosecutor's office. The employee was invited to this "interview" as part of a call to eliminate unsatisfactory work results (an interview to determine whether she has eliminated professional deficiencies). In the statement, the employer also referred to the purpose of waiting practice, which is supposed to be professional training, to which the legal waiting person undertakes as part of the promise made. In the alleged deepening of professional ignorance, he saw non-fulfillment of the requirements for the proper performance of work by the employee.
This case is specific in that they are unsatisfactory work results whether the employer's unfulfilled requirements are considered in professional ignorance of the employee, and their proof is thus crucial for the validity of the notice. It would probably not be problematic in cases where the employee's inexperience manifests itself in some obvious error in the work results. If we stick to the example of a legal waiting person according to the Public Prosecutor's Office Act and return to the definition of the type of work in Section 33, Paragraph 7 of this Act, it could be, for example, any wrongful act when representing the public prosecutor in a specific criminal or other case. Manifestation of incompetence could then consist of a faulty procedural procedure or a faulty substantive legal assessment manifested in written form (notation, decision, etc.) or during proceedings at the district court. In the adjudicated case, however, the employer did not have any such misconduct at his disposal (he did not claim it in the statement) and he saw professional ignorance in the insufficient theoretical preparation of the candidate for the position of public prosecutor. He based his lack of knowledge on:
- failures in previously completed selection procedures for the position of public prosecutor (he had at his disposal the final order of the legal waiting list and several evaluation reports of the members of the selection commissions, in which deficiencies in knowledge were commented on in more or less detail)
- an interview that had the character of a review similar to the final oral exam (which, however, the legal trainee had successfully completed years ago and the law does not allow for further similar reviews).
For the reason for termination according to § 52 letter f) of the Labor Code, it is typical that the violation of work duties by the employee is not required. The law only requires the objective existence of unsatisfactory work results, or objective non-fulfillment of the requirements formulated by the employer (let's leave aside cases of non-fulfillment of statutory prerequisites, as they were not the case in the given case). When setting or formulating requirements for the performance of the agreed work, the employer is limited by the fact that the set requirements must be justifiable and proportionate to the circumstances of the case, as otherwise it would be impermissible arbitrariness or on abuse of law (see judgment of the Supreme Court of the Czech Republic issued on 21.10.2008 October 21 under file no. 4059 Cdo 2007/XNUMX)[1]. It is certain that an employee in the position of legal assistant for the public prosecutor must show a certain professional level. The question remains, however, whether it should be a level sufficient for the performance of work (tasks) according to § 33, paragraph 7 of the Act on the Public Prosecutor's Office, or a level with some superstructure above this limit, and how the employer is entitled to control the achievement of this level and the court possibly review.
The Constitutional Court of the Czech Republic has already commented on the dismissal for non-fulfillment of the requirements for the proper performance of work, consisting in the insufficient professional level of the employee, in the resolution dated 5/8/2010 issued under file no. I.ÚS 1512/10. In this case, it was an unsatisfactory "professional level of activity at the National Gallery in the capacity of curator of the Nineteenth Century Art Collection". However, it is clear from the text of the justification of this resolution that the employee was criticized for shortcomings that found very specific manifestations in the curator's activities (unmet deadlines for the submission of assigned tasks within the agreed type of work - specifically during the preparation of exhibitions and the processing of catalogs for exhibitions).
In the case of a legal clerk, we do not find any specific objection to the fulfillment of the assigned work tasks of a legal clerk in the notice. The employer only recapitulated the unsuccessful selection procedures in the text and stated that during the interview it was found that she did not eliminate the professional ignorance (deficiencies) within the specified period.
Of course, the question arises as to whether the quality of the performance of the legal tenderer and his results during the selection process can be evaluated by the employer as work performance and whether failure (failure to obtain the position of public prosecutor) can be considered as poor performance of work tasks.
Also in this spirit, the appeals court formulated two questions of substantive law, which in its decision-making practice have not yet been resolved in all contexts:
- what significance does it have in terms of evaluating work results the legal assistant of the public prosecutor's office failure in completed selection procedures to fill the position of public prosecutor, a
- in what way is the employer of the legal applicant entitled to evaluate the fulfillment of the call to eliminate unsatisfactory work results.
Regarding the first question (taking into account the employee's performance during selection procedures when evaluating the quality of work results or meeting the employer's requirements), the Supreme Court of the Czech Republic states (in bold in this and in other citations by the author of the article):
"If, on the basis of its internal decision, the defendant additionally requires that the legal guardian submit to a selection procedure, this is a procedure that undoubtedly has its own justification, but which is not expressly provided for by the law or other legal regulation...."
"The failure of the legal examiner in the selection process therefore does not change the fact that the legal examiner still meets the prerequisites for appointment as a public prosecutor according to the provisions of Section 17, paragraph 1 of the Act, including the professional prerequisites, since the final exam, which he was required to undergo, already verified that has the necessary knowledge and is properly professionally prepared to hold the position of public prosecutor... Therefore, if the defendant pointed to the results (or ranking) achieved by the plaintiff in the selection procedures, this is not significant from the points of view relevant to the present case. "
From this part of the reasoning, it can be concluded that the Supreme Court of the Czech Republic believes that the performance of a legal tenderer during a selection process cannot be evaluated by the employer as either an unsatisfactory work result or as a failure to meet the employer's requirement for the performance of the work of a legal tenderer. However, we cannot make a clear conclusion in this spirit, on the contrary, from the further text of the judgment, a completely opposite conclusion can be drawn. The Supreme Court of the Czech Republic in a judgment elsewhere (p. 7) refers to the evaluation reports of committee members from these tenders and de facto thus derives from them the conclusion that the employer was right to believe that the legal assistant exhibits long-term professional ignorance during the performance of her work. IN context with the second question formulated above then the Supreme Court of the Czech Republic states:
"...under the given situation, it was not a general or self-explanatory examination unrelated to the employee's previous work results..., but rather o a very specific way of evaluating the plaintiff's work performance and work results in the sense of the provisions of § 302 letter a) Act work following up on its evaluation from recent years and on the previously made call to eliminate unsatisfactory work results."
Regarding the second question, the Supreme Court of the Czech Republic only adds that if such an interview (the examination of professional knowledge before the employer by an ad hoc committee) ended with the conclusion that "her professional knowledge does not guarantee that she will be realistically able to perform the function of public prosecutor", the employer he proceeded to terminate his employment in accordance with the provisions of § 52 letter f) the Labor Code. In other words, the Supreme Court of the Czech Republic did not see anything objectionable in such an employer's procedure when:
- he first invited the employee in a very general way to eliminate unspecified professional deficiencies within a certain period and warned him that an interview would be conducted in order to find out whether he had eliminated these deficiencies;
- subsequently, as part of the notified interview, he conducted a several-hour examination of the employee's professional knowledge, which he evaluated as unsuccessful for the employee, and which was in accordance with § 52 letter f) of the Labor Code as a basis for termination of employment (failure to remove unsatisfactory work results).
Unlike the trial court[2]. thus, the Supreme Court of the Czech Republic had no problem accepting either the employer's general request to remove unspecified professional ignorance, or an interview in the form of a review to the extent similar to a final exam. It is also interesting to add to the interview part of the reasoning of the judgment of the Court of Appeal (Regional Court in Hradec Králové – Pardubice branch):
"Although it can be admitted that the plaintiff was not correctly informed by the employer how the interview would take place, to what extent and that it would basically be a commission-based verification of the plaintiff's knowledge. a very good, if not excellent, candidate for the position of public prosecutor."
If we leave aside the question of the applicability of the conclusions of the judgment of the Court of Appeal regarding the results or the course of selection procedures, which will probably be applicable only in a very limited number of cases, it will be interesting to observe, j
how will the legal opinion of the Court of Appeal be reflected in practice on the employer's ability to evaluate the fulfillment of the call to eliminate unsatisfactory work results in the form of an interview with the employee. Indeed, if unsatisfactory work results are seen by the employer as an insufficient level of professional knowledge of the employee, without the shortcomings manifesting as objectively recordable or measurable errors in the performance of work, the only result of such a finding is a more or less subjective assessment of the employer.
For the sake of completeness, it should be added to this case that the employee filed a constitutional complaint against the judgments of the Court of Appeal.
Source: epravo Magazine 2/2019
The team of the Vych & Partners, s.r.o. law office
[1] This case was assessed according to § 46 paragraph 1 letter e) of Act No. 65/1965 Coll., however, due to the identical legal regulation in the Labor Code, the conclusions of this jurisprudence are applicable even today.
[2] The court of first instance stated: "Regarding the interview that took place with the plaintiff in January 2016, when she was examined in a similar way to the final exam after completing the waiting practice, it was proven in the proceedings that the plaintiff was indeed informed about conducting the interview, but she was not informed that the interview would be conducted to such an extent, and it was not proven in the proceedings that interviews were also conducted in such a way with other legal wait staff who are employed by the defendant. At the very least, we can talk about the defendant's unequal approach to employees."
