Termination of Employment Due to Organizational Reasons in Light of Case Law

The Labour Code is relatively brief in determining the conditions for termination of employment due to organizational reasons. However, Slovak court case law complements and often expands the statutory requirements in numerous diverse and unsettled cases. In practice, issuing a valid notice of termination becomes a challenging process full of formal and substantive constraints.

The reader is presented below with a simplified procedure which, in light of current case law, minimises the risk of a successful challenge to a termination on organizational grounds. The case law is not settled on many points. In view of the fundamental doubts as to the correctness and persuasiveness of the individual decisions, we do not claim that the failure to comply with some of the points (not mentioned in the Labour Code) set out below renders the notice of termination given invalid without more.

Written Analysis of Measures to Increase Work Efficiency in the Relevant Organizational Unit

• In this document, addressed to the statutory body of the employer, the responsible manager outlines measures that could increase work efficiency in the area where job positions are to be abolished, indicating that eliminating positions should be the most effective solution.

Written Decision by the Employer’s Statutory Body on the Abolition of the Employee’s Job Position

• This decision must include::

  • what organizational change occurs – the elimination of a specifically defined employee position, including the name of the employee;

  • reason for its elimination – to ensure higher work efficiency in the given department;

  • basis for the decision – analysis according to point 1, including its title and date;

  • date on which the position is eliminated – this date should be after the delivery of the notice;

  • date and signatures of the employer's legal representatives. The decision must be made before the termination notice is issued. The company name and the name of the person signing should be included with the signatures. 

Written Request for Consultation on Termination with Employee Representatives (if applicable)

• The request must specify:

  • definition of the decision of the employer's statutory body, based on which the organizational change occurred, including the date of the decision.;

  • specification of the organizational change, with the same conditions as those applicable to the decision regarding the elimination of the position;

  • reason for the elimination of the position – to ensure higher work efficiency in the given department;

  • basis for the decision – analysis with its title and date;

  • what constitutes the redundancy of the employee;

  • date and signatures of the employer's statutory representatives, with the same conditions applying as in the decision regarding the elimination of the position;

  • The attachment to the request should include the written decision of the employer regarding the elimination of the position and the written analysis.

Consultation on Termination with Employee Representatives

• According to case law, the employer does not need to physically meet with employee representatives for consultation. It is sufficient for employee representatives to review the termination request among themselves. The employer must provide necessary documents and information upon request.

Consent of the relevant labor office, social affairs, and family authority

• An employer may terminate the employment of an employee with a disability only with the prior consent of the relevant labor office, social affairs, and family authority. This consent is not required if the termination is given to an employee who has reached the age required for entitlement to old-age pension, or for reasons specified in Section 63(1)(a) and (e) of the Labor Code (termination or relocation of the employer and reasons for which an employment relationship can be terminated immediately).

Written offer of another suitable job position

• Prior to delivering the notice of termination, the employer shall offer the employee, in writing and during a personal meeting, all available suitable positions (despite the fact that, according to legal theory and case law, it is sufficient for the employer to offer only one suitable position, it is recommended that the employer offer all suitable vacant positions to the employee. This is because, if the employer offers only one position that later proves to be unsuitable in legal proceedings, while other suitable positions were available at the time of the termination, the termination could be deemed invalid):

  • at a location that corresponds to the place of work specified in the employee's employment contract; and

  • which are suitable for the employee in light of their health condition and the requirements for the given position (experience, education, etc.),

  • available at the time of delivery of the notice of termination.

• It is necessary to offer positions with shorter working hours as well.

• It is necessary to offer positions that the employee may not be able to perform immediately but could do so after prior training.

• It is also necessary to offer a position that is still vacant at the time of delivering the notice of termination, but is later intended to be filled by an applicant who has already been selected, although the employment contract has not yet been signed.

• During the meeting with the employee, at least two representatives of the employer must be present simultaneously, who will testify in any potential legal dispute about the offer of another suitable position.

• The written offer should include:

  • designation of the job position;

  • job description;

  • place of work;

  • requirements for the given position;

  • salary conditions;

  • working hours.

Written Termination Notice Delivered to the Employee

• For certainty, the notice of termination should be delivered to the employee only after 7 working days have passed from the delivery of the request for discussion of the termination by the employee representatives, and at the end of the work shift

• In any case, the notice of termination must be signed and delivered to the employee only after the employer's decision to eliminate the position has been made (and after the employee representatives' confirmation of the discussion of the termination);

• The notice of termination must include:

  • the definition of the decision of the employer's statutory body, based on which the position was eliminated, including the date of the employer's decision;

  • specification of the organizational change – the elimination of a specifically defined employee position, including the employee's name;

  • reason for the elimination of the position and the basis for the decision (analysis).;

  • the grounds for the employee's redundancy.,

  • the date and signatures of the employer's statutory representatives, with the same conditions applying as in the decision regarding the elimination of the position;

• If the notice of termination is delivered in person, at least two representatives of the employer should be present simultaneously to confirm the delivery of the notice. The employee must be required to acknowledge receipt of the notice in writing. If the notice is delivered by mail, it should be sent by registered mail with return receipt.    

Administrative Cancellation of the Job Position

• After the job position is abolished, this must be reflected in the employer’s internal documents without delay.

The employer must not create a position that was eliminated within 2 months after the termination of the employment relationship and hire a new employee for that position.

It is also not allowed to first hire another employee for the same or similar position as the one that is to be eliminated, and then, after an unreasonably short period of time (a few months), eliminate that position.