The Supreme Court of the Czech Republic (hereinafter referred to as the "Supreme Court") by judgment issued on April 25, 2017 under file no. stamp 21 Cdo 5836/2016 again[1] confirmed his established legal opinion regarding the lowest intensity of violation of work duties for which an employee can be dismissed.
According to § 52 letter g) of Act No. 262/2006 Coll., Labor Code, as amended (hereinafter referred to as the "Labor Code"), the employer may terminate the employee's employment due to persistent minor violations of obligations arising from legal regulations relating to the work performed by the employee. This is the third factual basis of the grounds for termination contained in this provision. In order to fulfill it, it is assumed that the employee commits the wrongdoing again, i.e. at least three times[2] violation of his work duties arising from legal regulations, internal regulations, employment or other contracts or instructions from a superior. They must be violations that occurred in reasonable time intervals (there must be a reasonable temporal connection between them). It is not necessary that it be the same transgressions over and over again. An employee can also be dismissed if he commits three completely different minor violations of his work duties.
The intensity of violation of work duties is not legally defined in the Labor Code, but breaks down into three separate categories. The Labor Code thus gives the employer, based on the intensity of the breach of duty by the employee, the possibility to terminate the employee for (i) breach of work duties in a particularly gross manner (i.e. for a breach so intense that the employer could immediately terminate his employment relationship), or for (ii ) serious breach of duty. The last, i.e. the third level of intensity of breach of duty is the so-called persistent less serious breach of duty. The condition for the validity of a termination for a continuous breach of a less serious duty is a written notice of the possibility of termination, which the employer must deliver to the employee no later than before the last breach of duty, which was followed by the termination (within 6 months before delivery of the termination). Civil courts in labor law disputes about the validity of such a notice regularly resolve the question of what the phrase actually means "less severe" breach of duty, or whether there can be a breach of duty which is so banal in its intensity that it does not even reach this lesser seriousness.
The Supreme Court commented on this very issue in the current decision mentioned at the beginning of this article. "The Labor Code does not regulate a lower degree of intensity of violation of work obligations than a less serious violation; therefore, any breach of duty that does not reach the intensity of breach of duty in a particularly gross manner or serious breach of duty is always a less serious breach of duty arising from legal regulations relating to the work performed by the employee."
The Supreme Court thus confirmed that an employee can be dismissed even in the case of repeated (at least three) minor, minimal or minor violations of work duties. It is also not essential whether or not the employer suffered damage as a result of such a marginal breach of duty, or whether or not his activity was hampered. In the same way, for the possibility of termination of the employment relationship according to § 52 letter g) of the Labor Code, it is irrelevant whether it was committed by an otherwise problem-free employee who was evaluated positively by the employer.
In this regard, the Supreme Court emphasized that a positive evaluation of an employee by the employer, which could be manifested, for example, by an increase in one of the components of the salary or by awarding a personal allowance in the case of salary remuneration, by providing an extraordinary bonus, does not mean a priori that the employment relationship with this employee could not be terminated ratio due to persistent less serious breach of duty.
Despite the fact that this legal interpretation of the Court of Appeal regarding the minimum intensity of violation of work duties is already completely constant[3], there are still opinions in court practice that are contradictory and inconsistent with this settled legal opinion. In this cited case, the Municipal Court in Prague, as a court of appeal, found the notice of termination invalid, because the employee fulfilled his obligation later with a delay of only a few days, the employer neither asserted nor demonstrated that he would be harmed by this delay, or that it would otherwise be made more difficult his activity. He also took into account the fact that the employee was otherwise problem-free, as well as the fact that his salary had recently been increased.[4]
This jurisprudence is worth attention for another reason than the confirmation of a settled legal interpretation of the intensity of the violation of work duties. The Senate of the Supreme Court 21 Cdo has repeatedly ruled in the past that after the annulment of the so-called judgment decree by the Constitutional Court of the Czech Republic (484/2000 Coll.), it is not possible to automatically use the attorney's tariff for the purposes of calculating compensation for the costs of civil court proceedings, including in proceedings which were initiated only after the award decree was revoked. However, it is normally used by civil courts to calculate the costs of proceedings (and is thus governed by the judgment of the Grand Senate of the Civil Law and Commercial College of the Supreme Court of 15/5/2013, File No. 31 Cdo 3043/2010, published under No. 73/2013 Collections of court decisions and opinions). We only briefly state that the Code of Civil Procedure[5] regarding the costs of proceedings, the following basic rule is laid down in § 151 paragraph 2:
"PWhen deciding on compensation for the costs of the proceedings, the court shall determine the amount of remuneration for representation by a lawyer or a notary within the scope of his authority established by a special legal regulation, or by a patent representative to the extent of his authority established by a special legal regulation, according to the rates determined flat-rate for proceedings in one instance by a special legal regulation"
It follows from this provision of the Code of Civil Procedure that the amount of remuneration for representation in civil proceedings is to be determined according to the rates set flat for proceedings in one instance by a special legal regulation. This diction is adhered to by the panel of 21 Cdo of the Supreme Court and considers the procedure according to the attorney's tariff to be incorrect. In the judgment issued under sp. stamp 21 Cdo 5836/2016 then the Supreme Court states:
"The amount of the remuneration is to be determined according to the rates established flat-rate for proceedings in one instance by a special legal regulation (Section 151, paragraph 2, part of the first sentence before the semicolon, as it is not an award of compensation for the costs of the proceedings according to the provisions of Section 147 or Section 149, paragraph 2 os ř. and even the circumstances of the case in the present case do not justify proceeding according to the provisions of the special legal regulation on non-contractual remuneration (Section 151, paragraph 2, part of the first sentence after the semicolon os ř.). Decree No. 484/2000 Coll. (as amended), which adjusted the attorney's fee rates set flat for proceedings in one instance, was, however, a decision of the Constitutional Court dated 17/4/2013 No. 116/2013 Coll. canceled on 7/5/2013. In this situation, the Supreme Court of the Czech Republic determined, for the purpose of compensation for the costs of proceedings, a flat-rate rate of remuneration for proceedings in one instance, taking into account the nature and circumstances of the case under consideration and the complexity (difficulty) of the legal services provided by the lawyer in the amount of CZK 10 for appeal proceedings and CZK 000 CZK for appeal proceedings."
The following examples can be cited from the decision-making practice of this senate:
In the decision of the Supreme Court issued under sp. stamp 21 Cdo 616/2014, the Supreme Court of the Czech Republic states:
"... the amount of remuneration for representation by a lawyer is to be determined according to the rates established flat-rate for proceedings in one instance by a special legal regulation (Section 151, paragraph 2, part of the first sentence before the semicolon), as this is not an award of compensation for the costs of the proceedings in accordance with the provisions of Section 147 or Section 149(2) of the Civil Code and the circumstances of the case in the present case do not justify proceeding according to the provisions of the special legal regulation on non-contractual remuneration, i.e. according to the provisions of Section 6 et seq. of Decree No. 177/1996 Coll., on lawyers' remuneration and attorneys' compensation for the provision of legal services as amended (hereinafter referred to as the "lawyer tariff"), (cf. § 151, paragraph 2, part of the first sentence after the semicolon os ř.). Because Decree No. 484/2000 Coll., the award decree, which regulated the rates of remuneration for the representation of a participant by a lawyer set flat for proceedings in one instance, was a decision of the Constitutional Court dated 17/4/2013 No. 116/2013 Coll. canceled on 7/5/2013, should the appellate court in this situation have determined, for the purpose of compensation for the costs of proceedings, a flat-rate rate of remuneration for proceedings in one instance, taking into account the nature and circumstances of the case under discussion and the complexity (difficulty) of the legal service provided by the lawyer; corresponding to this, also taking into account the number of participants represented by a lawyer, is a rate of CZK 15.000 for proceedings at the court of first instance and a rate of CZK 7.500 for appeal proceedings."
The same opinion regarding the calculation of the costs of proceedings was held by this panel of the Supreme Court of the Czech Republic in, for example, these other cases: proceedings conducted under sp. stamps 21 Cdo 2025/2013, 21 Cdo 2511/2015, 21 Cdo 1997/2014, 21 Cdo 3887/2014 and others.
Source: epravo
The team of the Vych & Partners, s.r.o. law office
[1] See, for example, the decision of the Supreme Court dated 12 April 4, no. 2001 Cdo 21/3019, or the decision of the Supreme Court of 2000/12/4, no. 2001 Cdo 21/3019 or the judgment of the Supreme Court of August 2000, 7, file no. stamp 2014 Cdo 21/747.
[2] Decision of the Supreme Court dated 12 April 4, stamp 2001 Cdo 21/3019, Decision of the Supreme Court of February 2000, 6, no. Stamp No. 2 Cdo 2001/21, Decision of the Supreme Court of 379/2000/17 file no. stamp 10 Cdo 2006/21, Decision of the Supreme Court of 84 January 2006, no. Stamp No. 19 Cdo 1/2000, possibly also the Decision of the Supreme Court of 21 October 1228 no. stamp 99 Cdo 17/10, Decision of the Supreme Court of 2006 January 21, no. stamp 84 Cdo 2006/19.
[3] E.g. decision of the NS dated 12/4/2001 file no. 21 Cdo 3019/2000, or the decision of the Supreme Court of 12/4/2001, no. 21 Cdo 3019/2000 or the judgment of the Supreme Court of August 7, 2014, file no. stamp 21 Cdo 747/2013.
[4] We proceed from the reasoning of the judgment of the Supreme Court of the Czech Republic issued under sp. stamp 21 Cdo 5836/2016.
[5] Act No. 99/1963 Coll., Code of Civil Procedure, as amended.
