This article responds to the current resolution of the Constitutional Court of the Czech Republic (hereinafter referred to as the "Constitutional Court") issued on November 6, 11 under no. stamp II. ÚS 2019/1316. At the same time, it follows on from my article How wide the possibilities are for the employer when evaluating the professional knowledge of his employee for the purposes of dismissal according to § 19 letter f) of the Labor Code (Reflections on a judgment of the Supreme Court of the Czech Republic) published in EPRAVO.CZ Magazine 52/2 (pp. 2019 – 109), which captured the given case at the stage after the decision of the appeal court and reflected on some questions in connection with legal the opinions of the Court of Appeal.
First, a brief description of the facts of the case. The employee worked as a legal clerk at the public prosecutor's office and had successfully passed the final exam for several years. Her employment was concluded for an indefinite period. The employer gave notice of this legal waiting period 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 on the part of the employee.
Statements based on subjectively assessed professional knowledge, or violation of the promise of legal waiting "by deepening professional ignorance", the regional prosecutor's office went on relatively thin ice. However, this risky move ultimately turned out to be the right solution for the employer. The question is how this, for me, relatively surprising interpretation of the provisions of § 52 letter f) of the Labor Code will affect practice. A number of occupations are based on the need for specialist knowledge. Their existence and level is not always objectively detectable, or in my opinion, their lack must necessarily manifest itself during the performance of work (error, failure to complete the task on time or properly, which is usually evidenced by a call to eliminate unsatisfactory work results and a document proving the fact that the deficiencies have not been eliminated, etc.). In the given case, however, the evidence used by the employer to prove that the alleged deficiencies had not been eliminated was the interview - the examination of the employee on professional questions in order to determine whether she had eliminated the "professional deficiencies" or not. The termination was therefore based on the employer's subjective assessment of the employee's professional level, with the fact that its inadequacy was not manifested by errors or shortcomings in the performance of work tasks (for the duties of a legal waiter, see below), but de facto by the fact of the unusually long duration of the waiting practice (the fact that it was in the course of which maternity and parental leave was taken was undecided) and unsuccessfully completing several selection procedures for the position of public prosecutor.
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 as a legal tenderer precisely by taking up the position of public prosecutor.
Court of first instance to the employee's claim, he declared the termination invalid. The employee met the requirements set by law for the performance of the agreed work, the district court found the alleged failure to comply with the promise of legal waiting to be indeterminate, the delays criticized by the invitation were removed within the specified period, the employee was not informed that the interview would take place in the form of a review, so she did not have the opportunity to prepare for it and the district court described the fact that this procedure was followed only in the case of this employee as an unequal approach.
County Court to the employer's appeal, without supplementing or repeating the evidence, he changed the judgment of the court of first instance by rejecting the claim for invalidity of the dismissal. He emphasized that the purpose of the waiting practice of a legal waiting person is preparation for the performance of the function of a public prosecutor, and therefore it would be a denial of the meaning of § 33 et seq. of the Act on the Public Prosecutor's Office, if the professional training of a legal clerk could last indefinitely (author's note - neither the Act on the Public Prosecutor's Office nor any other legal regulation stipulates the maximum length of practice and, on the contrary, foresees that the legal clerk and the employer can, by agreement, change the employment relationship from the originally limited period definite for an indefinite period). The regional court stated that it was established that starting in 2010, when the employee failed the selection process for the first time, the employer continuously expressed doubts about her professional level and knowledge. According to the regional court, the employee's failure in the selection process was a manifestation and result of her lack of expertise and knowledge and a denial of the meaning of the promise of the legal guardian to conscientiously prepare for the performance of the public prosecutor. According to the regional court, the process of long-term stagnation of the professional level was completed by its formal review, from which, according to the statement, or the employer's one-sided report revealed that the employee has only basic knowledge. Although the regional court admitted that the employer had not correctly informed her what the content and scope of the interview would be, she should, in his opinion, have been able to perform at least at the level of a very good, if not excellent, candidate for the position of public prosecutor.
Employee appeal Court of Appeal rejected (judgment dated 31/1/2019 issued under reference no. 21 Cdo 2676/2018-223). For the content of the judgment of the Court of Appeal in detail, I refer to the already mentioned article How wide are the possibilities for the employer to assess the professional knowledge of his employee for the purposes of termination pursuant to § 52 letter f) of the Labor Code (Reflections on one judgment of the Supreme Court of the Czech Republic) published in EPRAVO.CZ Magazine 2/2019 (p. 109 – 112).
V constitutional complaints the employee objected that the appeals court did not remove the errors of the regional court, which, unlike the court of first instance, attached relevance to her results in selection procedures for the position of public prosecutor. Although the Court of Appeal stated that the results or rankings achieved by the employee in the selection procedures are not relevant from the point of view of the present case, it based its conclusion on the justification of the dismissal, among other things, on the evaluation of the employee's knowledge, which the employer requested from the three most recent selection procedures . Although the law does not impose an obligation on legal tenderers to participate in selection procedures, nor a deadline by which they should be successful in a selection procedure at the latest, the Court of Appeal de facto included the successful completion of a tender procedure in the work duties of a legal tenderer, or in his job description. The employee further objected that the Court of Appeal considered the question of how the employer of the legal practitioner is entitled to assess the fulfillment of the challenge to eliminate professional deficiencies (with reference to the incorrect method of inviting the interview, which was in fact a several-hour examination declared by the regional court) as a question of substantive law, which it has not yet been addressed in the practice of the Court of Appeal, but in the justification of its decision it was left unanswered. Likewise, the question of whether or not that interview was a manifestation of unequal treatment of employees, as concluded by the court of first instance, remained unnoticed by him.
The employee in the constitutional complaint, or reply to the statement of the Court of Appeal, summarized that, in her opinion, the participation of a legal tenderer in selection procedures for the position of public prosecutor cannot be part of the job (work duties) of a legal tenderer, and thus the results of these tenders cannot be a basis for assessing the professional knowledge of an employee with possible consequence in the form of dismissal for failure to meet requirements (or even explicitly for unsatisfactory work results). If the appellate court stated that the employer can take into account everything that allows it to make an objective finding about the unsatisfactory work results of the employee, but at the same time explicitly stated that the results and performances of the employee during selection procedures cannot be essential for the dismissal according to § 52 letter f) of the Labor Code, his decision contains an internal contradiction. All the negative evaluation of the professional level of the employee was based on the results of the selection process. The employee further objected that if it were even possible for success in the selection procedure to be a legitimate requirement of the employer, he would have to inform the employee about it in advance.
Constitutional Court however, he found the argumentation and objections of the complainant unfounded.
According to the Constitutional Court, the conclusion is that in the case of an employee performing the function of legal guardian, his persistent insufficient knowledge can also be considered as non-fulfillment of the requirements for the proper performance of the agreed work, if these call into question that he will be realistically able to perform the function of a public prosecutor in the future, on the one hand in accordance with § 52 letter f) of the Labor Code, on the one hand, it corresponds to the legal definition of the function of legal guardian. The Constitutional Court emphasized that the reason for the dismissal was not the employee's failure in individual selection procedures, but the persistent lack of knowledge. If the regional court took into account the reports about the applicant's participation in these selection procedures, it did so with regard to the fact that these reports represented one of the sources from which the employer inferred a lack of knowledge lasting for a longer period of time. Regarding the "interview", which in its scope resembled a final exam lasting several hours (which the employee had already passed), the Constitutional Court stated that its conduct was justified by specific circumstances and had the nature of an assessment of work performance and work results pursuant to Section 302 letter a) of the Labor Code. In its framework, according to the Constitutional Court, the fulfillment of the applicant's obligation to prepare for the performance of the position of public prosecutor was evaluated.
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. However, if professional deficiencies are not apparent during the performance of work tasks, the employer may logically have a problem proving their existence. In this case, it was enough for the employer to repeatedly point out several cases of unsuccessfully completed selection procedures, from which he obtained the reports of some members of the commission. Professional deficiencies in the performance of work tasks (specifically processed files) were pointed out only once, namely in the call to eliminate unsatisfactory work results. The employee complied with the request and the only reason for the termination was the interview, which was negatively evaluated by the employer. Even after the decision of the Constitutional Court, it is not entirely clear if the reason for the dismissal was failure to remove unsatisfactory work results or failure to meet the employer's requirements to achieve a certain professional level of knowledge.
The Constitutional Court 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 another case by resolution dated 5 August 8 issued under file no. I.ÚS 2010/1512. In this case, it was 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.
The Constitutional Court did not explicitly answer the question of whether the quality of performance of a 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, but stated in the justification , that the employer could have taken into account reports on the applicant's participation in these tenders as one of the sources from which a lack of knowledge lasting a longer period of time can be inferred.
If we leave aside the question of the applicability of the conclusions of the judgment of the Court of Appeal, i.e. of the Constitutional Court regarding the possibility of taking into account 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 see how the legal opinion of both courts will be reflected in practice on the possibility of evaluating employers fulfillment of the call to eliminate unsatisfactory work results in the form of an interview with the employee (examination). 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 means of proof remains the subjective assessment of the employer captured in his unilateral report or statement.
Source: epravo
