I was prompted to write this post by a recent experience with an appellate court decision in an employment dispute. The employee demanded payment of monetary compensation from the employer for compliance with the non-competition clause concluded pursuant to Section 310 of the Labor Code. Fairly extensive evidence was conducted before the court of first instance regarding several disputed issues. The employer defended himself against the raised claim with a number of arguments, which of course had to be countered in order for the employee's claim to stand.
The employee reflected arguments about the invalidity of the non-competition clause, which was agreed together with the probationary period (before its expiry) at a time when the Labor Code did not allow it (the non-competition clause was invalid only relatively and the employer was not entitled to object to the invalidity with reference to the legal opinion contained in the judgment of the Supreme court of the Czech Republic issued under file no. 21 Cdo 2569/2015). The employer also defended himself by withdrawing from the agreement on the non-competition clause. However, he resigned for a reason that was not agreed between the parties to the employment relationship as a reason for a possible resignation, which according to the now constant jurisprudence of the appeals and the Constitutional Court of the Czech Republic means only one thing. The non-competition clause did not expire with the withdrawal and continues to apply. The employee also had to deal with the argument that her request is against good morals (the employee insists on complying with the non-competition clause in a situation where she knows that the employer is not interested in complying with it, moreover at a time when she has a small child and the non-competition clause thus financially covers the period of care for this child) and with a proposal to apply § 1766, paragraph 1 of the Civil Code (change of circumstances).
Why am I providing these details? Because the effort to deflect all the employer's arguments (it must be added that it was successful before the courts of both levels) diverted attention from one legally trivial but ultimately essential question for the case. If an employee sues for an amount representing average earnings (or multiples thereof), he must of course also focus on correct and sufficient documentation of the amount. In this case, the court of first instance was satisfied with the documentary evidence provided by the employee, which was a confirmation of the amount of average earnings issued in accordance with Section 313, paragraph 2 of the Labor Code. The certificate was issued by the employer at the request of the employee, who did not dispute the amount of average earnings calculated in this way and based her claim on it. The confirmation did not include the method of calculating the average earnings, nor the input data for this calculation. Both parties to the employment relationship agreed on the amount of average monthly earnings, and the court of first instance decided on this amount with reference to the issued certificate. For the sake of completeness, it must be stated that the court of first instance did not have any other evidence or assertions regarding the amount of the employee's average monthly earnings.
The Court of Appeal, when announcing its decision, by which the judgment of the court of first instance was annulled and the matter was returned to it for further proceedings, completely agreed with the legal conclusions of the court of first instance (and the employee) regarding the reasonableness of the demand for performance from the non-competition clause, except for one conclusion, which was the reason for the return of the matter to the first instance. The Court of Appeal stated that determining the amount of average earnings for the purpose of determining the amount of reasonable monetary compensation for the fulfillment of the non-competition clause is not a question of fact, but a question of law. The court of first instance was satisfied without further ado with the confirmation of the amount of average earnings issued in accordance with § 313 paragraph 2 of the Labor Code, i.e. with the agreement of both parties to the meaning that the average earnings correspond to the amount indicated on the submitted confirmation.
A necessary prerequisite for the decision of the case is a proper ascertainment of the facts. The factual situation is established by proof. Legally significant facts, which the participants introduced into the proceedings with their claims, are primarily proven through the means of evidence listed, for example, in the provisions of § 125 of the Code of Civil Procedure. However, some facts are not subject to proof. Among other things, these are facts on which the participants agreed, i.e. identical statements of the participants in the sense of the provisions of Section 120, paragraph 3 of the Code of Civil Procedure. The identical claims of the participants are a means on the basis of which the court can make findings about the factual circumstances of the matter, which would otherwise (in the event of a disagreement or dispute between the parties to the proceedings) have to be clarified by means of evidence. It follows logically from this that the identical statements of the participants can only be a finding of fact when it comes to knowledge about the factual side of the matter, which would otherwise have to be proven by means of evidence (cf. e.g. the judgment of the Supreme Court issued under file no. 21 Cdo 5063/2017). On the contrary, the claims of the participants, which represent a legal evaluation for the determination of significant facts or a legal assessment of the matter, are not a suitable means of ascertaining the factual state of the matter, and thus neither a source for the court's factual findings.
Already in the judgment of September 4, 9, the Supreme Court of the Czech Republic ruled under sp. stamp. 2002 Cdo 21/1478, that the clarification of the employee's average earnings depends not only on the establishment of decisive facts, but also on their legal assessment according to the then valid § 2002 of Act No. 17/1 Coll., on wages, remuneration for work readiness and average earnings (as amended). In this judgment, the Supreme Court stated that the conclusion on the amount of average earnings is not a finding of fact, but the result of the application of a legal regulation, i.e. a legal conclusion[1].
It is obvious that distinguishing a question of fact from a question of law is not always a simple matter even for a lawyer, let alone for a party to the proceedings. At the same time, the correct conclusion as to whether a certain argument relates to a question of law and not of fact (or vice versa) can have major procedural consequences in civil court proceedings. If, for example, the appellant disputes in the appeal only incorrectly established conclusions of fact, his appeal will be rejected as inadmissible, because the only admissible grounds for appeal according to Section 241a, paragraph 1 of the Code of Civil Procedure is an incorrect legal assessment of the case.
In the judgment already cited[2] the court of appeal stated that when clarifying the average earnings of an employee, the court cannot rely on the data of the employee and the employer on how much, in their opinion, the average earnings were, even if they coincided in content. As its findings of fact, the court can only take the same statements of the employee and the employer about the facts decided to determine the average earnings.
Although the cited judgments related to the now ineffective wage law, there is no reason why the same conclusions should not also be applied to the average earnings determined according to § 351 et seq. Act No. 262/2006 Coll., Labor Code, as amended. Efforts to make it easier to prove the amount of average earnings by using the employer's confirmation of the amount of average earnings without other necessary documents for the calculation may not be sufficient for the finding court, and the amount of average earnings should be determined on the basis of the necessary factual documents (e.g. documents on the calculation of wages or salaries according to § 142 paragraph 5 of the Labor Code for the relevant period, etc.) by legal assessment of the criteria set out in the relevant provisions of the Labor Code (Section 351 et seq. of the Labor Code, taking into account the provision that determines whether the performance is average hourly or monthly earnings).
Source: epravo
The team of the Vych & Partners, s.r.o. law office
[1] The same conclusion was reached by the Supreme Court of the Czech Republic further, for example, in the judgment issued on 6 September 9 under file no. stamp 2011 Cdo 21/1836: "It follows from the above that average earnings and the method of determining them is a legal category, the content of which is determined by law. The question of the correct amount of average earnings is therefore primarily a question of law."
[2] Judgment of the Supreme Court of the Czech Republic dated 4/9/2002 issued under no. stamp 21 Cdo 1478/2002. Likewise, for example, the judgment of the Supreme Court of the Czech Republic issued on March 2, 3 under file no. stamp 2006 Cdo 21/811
