Termination of the employment contract is one of the most important sections of Labor Law. The recent labor law (: law 4808/2021) brought changes in this part as well.
In our previous article, we were concerned with the reapproaching of the formal conditions for the validity of the termination of the employment contract of indefinite period by the employer. We were also concerned about the legal consequences of non-compliance.
In this article we will deal with its substantive conditions, the burden of proof and the legal consequences of the defective termination by the employer.
List of cases of invalidity
Article 66 §1 of Law 4808/2021 records specific cases of invalidity of the termination of the employment contract of indefinite period. Indicatively, if it:
(a.) is due to discrimination against the employee or due to revenge, or
(b.) occurs in response to an exercise of an employee ‘s legal right; or
(c.) is contrary to another specific provision of law, in particular when it comes to dismissal:
(c.a.) due to discrimination or due to a request for legal protection, to ensure compliance with the principle of equal treatment;
(c.b.) due to the exercise of rights in case of violence and harassment;
(c.c.) is a dismissal of pregnant women and women in the postpartum period, as well as of the father of a newborn child, when there is no grerat reason;
(c.d.) is in response to a request or authorization or flexible arrangement for childcare;
(c.e.) is during the annual leave,
(c.f.) is of persons with many children, of disabled and generally of persons under a protective regime, who have been forcibly placed when the legal conditions have not been met,
(c.g.) is of persons in the military,
(c.h.) is of trainee employees in tourism enterprises,
(c.i.) is implemented in violation of the legislation on collective dismissals,
(c.j.) is of trade unionists, members of employees’ councils, when there is no great reason;
(c.k.) is due to legal union action of the employee,
(c.l.) is due to non-acceptance by the employee of the employer’s proposal for part-time or rotational work;
(c.m.) is of employees who refuse the management, which has been collectively agreed and whose refusal is not contrary to good faith, as well as of employees who have not applied for a management, even though they have been asked to do so by the employer;
(c.n.) is of employees exercising the right to disconnection.
If the cause of such a termination falls into one of these cases, the already known legal consequences occur. Practical: the employee is entitled to claim recognition of the invalidity of the termination of their contract. In addition, they are entitled to request their re-employment but also the payment of arrears of wages for the period when the employer did not accept their services.
The list of cases of invalidity is indicative. This is clear from circumstance c΄ of §1. The latter stipulates that the termination of the employment contract by the employer is invalid, as long as it is contrary to “… special provision of law and in particular…” to specific special regulations which, subsequently, the legislator explicitly invokes (ca. c.a.-c.j.).
The burden of proof
Regarding this issue, it is provided that (art. 66 §2): “if the employee proves in court facts that can support the belief that the dismissal took place for one of the reasons of par. 1, it is up to the employer to prove that the dismissal did not take place for the alleged reason.”
This is obviously a (proof) facility in favor of the employee. In particular, if the employee invokes and proves a fact which may support the belief that their dismissal took place because of the fact invoked, then the employer must prove otherwise. The burden of proof, that is, is reversed and the employer must prove that they did not terminate the employment contract for the prohibited reason alledged by the employee.
Of course, the evidentiary facility seems to concern, at a first level, all the cases of §1. This, however, loses its meaning for some of the cases provided there. Indicative: dismissal during the period of the leisure leave which, in any case, is prohibited and for this reason there is no question of proof (beyond the time of its execution). Also, the termination of the employment contract of a pregnant woman who, in any case, also requires the existence and invocation of an important reason by the employer, otherwise it becomes invalid (art. 15 §1 law 1483/1984).
The possibility of paying additional compensation
To the consequences of the invalid termination of the employment contract of indefinite duration by the employer an alternative one is added (§3, art. 66) this time: In cases of defective termination (with the exception of those already mentioned above – §1 i.e. of the same article), the court, instead of another consequence, awards an additional amount of compensation in favor of the employee.
The aforementioned restriction leads to the conclusion that §3 includes cases of invalid dismissal which are either not explicitly listed in paragraph 1 or are not contrary to a specific provision of law, even if the latter is not specifically mentioned in §1. Therefore, the scope of this provision (§3 of art. 66) includes any termination of an employment contract that is contrary to a general provision of law. Also, that is, those that are exercised abusively (: article 281 of the Civil Code).
The review of the abuse of the right of termination
Despite the non-casual nature of the termination of the employment contract of indefinite duration, it is not possible (according to both theory and case law) to oppose good faith and fair dealing. It is therefore possible to have a judicial review on the basis of the relevant provision (: art. 281 of the Civil Code).
The case law has created criteria for reviewing the termination on the basis of 281 of the Civil Code, the non-observance of which affects its validity. These criteria include:
(a) The principle of the ultima ratio: Both the Supreme Court and the courts of the substantive assess whether the reasons which led to the termination of the employment contract, make, in fact, the termination necessary. In particular, the termination is the most onerous measure for the employee. Therefore, it should be the last resort of the employer. In case the interests of the employer can be satisfied with less burdensome measures for the employee, the termination from the part of the employer is void.
(b) The principle of proportionality: This principle is used by the jurisprudence as a criterion for specifying the general clause of good faith (int .: 897/2012 Supreme Court). Any, in fact, violation of art. 281 of the Civil Code and in particular of the principle of proportionality is reviewed by case law in the case of termination of an employment contract for failure to comply with the prescribed disciplinary procedure.
(c) The correct choice of the dismissed: In cases where economic and technical reasons justify the employer’s choice to terminate the employment contract, the latter may be considered invalid as abusive, if the employer does not select the employee to be dismissed based on social and financial criteria. As such criteria are defined by the jurisprudence as the seniority, age, financial and family status of each of the comparable employees (int .: 722/1999 Supreme Court). And this obligation derives, as the case law accepts, from the principle of good faith.
(d) The amending termination: The amending termination is a milder measure than the (common) termination. This is a continuation of employment with different working conditions than the agreed upon. And this termination is subject to the review of 281 Civil Code.
(e) The submission of a complaint before the court as a mere pretence: The exercise of the right of termination is also subject to abuse review in cases in which, although a complaint or lawsuit has been filed against the employee, it is filed as a mere pretence. Specifically, when the criminal prosecution constitutes the reason for the termination, the validity of the latter suffers, when the employer knows the false accusations against the employee.
How to exercise the right to additional compensation
We have seen above that the termination of the employment contract may suffer for some other reason than those mentioned above – and explicitly refer to §1 (which brings about its invalidity). In this case it is possible, as already mentioned, to ask the court, alternatively (instead of the consequences of the invalidity: re-employment and arrears of wages) for additional compensation. The request can be submitted either by the employee or by the employer at any stage of the proceedings (in the first or second instance).
The amount of the additional compensation
The amount of the additional compensation cannot (art. 66 §3) be less than the regular salary of three (3) months nor more than twice the legal compensation – due to termination at the time of dismissal. As a criterion for determining its amount, the court takes into account (in particular) the severity of the employer’s fault and the property and financial situation of both (employee and employer).
The possibility of paying additional compensation at the request of the employee
The employee can request the payment of the above additional compensation in case the complaint suffers for some reason mentioned in §1 -for a reason, ie, which falls within the list of cases of complaints listed there. In this case, the employee is given the right to claim the aforementioned additional compensation – instead of acknowledging the invalidity of the complaint and the occurrence of its consequences.
The prohibition of cumulation of claim for invalidity and additional compensation
In case the employer files a lawsuit with a request for additional compensation, if one of the prohibitive reasons of §1 is met, «… no request can be accumulated for the recognition of the invalidity of the complaint and the occurrence of the legal consequences of the invalidity, provided that the two requests are based on the same historical and legal basis” (art. 66 §6). According to the letter of the law, this accumulation, even if ancillary, “… leads to the rejection of both as unacceptable.”.
Therefore, in order for the employee to claim, in this case, the additional compensation, it is presupposed that they cannot claim, at the same time, the occurrence of the legal consequences of the invalidity of the termination of their employment contract (eg re-employment and arrears of wages).
The law of termination of employment contract for an indefinite period is being modernized and rationalized.
It is already moving in the direction of avoiding time-consuming and costly procedures, in the direction of alleviating the significant burden of cases that concern the courts, in the direction of easing companies and facilitating employees.
It is ultimately moving towards the benefit of the real economy.
The (positive) results will soon begin to appear
Stavros Koumentakis
Managing Partner
P.S. A brief version of this article has been published in MAKEDONIA Newspaper (November 21st, 2021).
Disclaimer: the information provided in this article is not (and is not intended to) constitute legal advice. Legal advice can only be offered by a competent attorney and after the latter takes into consideration all the relevant to your case data that you will provide them with. See here for more details.