In ongoing proceedings concerning improper termination of an employment contract by an employer, such cases are increasingly being resolved through a settlement. A settlement may be reached before a mediator and then approved by the court, or directly before the court presiding over the proceedings.
During mediation, the parties develop a common position, which may differ slightly from the claims presented in the lawsuit. Both sides make certain concessions to resolve the dispute more quickly and minimize costs.
These types of proceedings typically end with a settlement. But what happens if one of the parties, usually the employer, fails to fulfill the obligations arising from the settlement? In the following article, we'll outline the steps an employee can take in such a situation.
Application for granting an enforcement clause
In the event of a court settlement under which the employer undertakes to issue the employee with a rectified employment certificate, taking into account the change in the procedure for terminating the employment contract by mutual consent, the employee may apply for an enforcement clause and seek enforcement of the settlement in enforcement proceedings.
What will the execution look like?
Due to the fact that the settlement includes a non-pecuniary obligation consisting in the issuance of a document with specific content, which may only be prepared by the employer, enforcement in this situation will be conducted pursuant to Article 1050 of the Code of Civil Procedure. Pursuant to Article 1050 § 1 of the Code of Civil Procedure, the court with jurisdiction over the place where the act is to be performed, at the request of the creditor (employee), after hearing the parties, will set a deadline for the debtor (employer) to perform the obligation, under pain of a fine in the event of failure to perform the act within the specified time.
What if the employer still fails to fulfill his obligation?
If the employer still fails to complete the action within the deadline set by the court, then, at the employee's request, the court will impose a fine on the employer and simultaneously set a new deadline for completion of the action, with the threat of a more severe fine. Alternatively, instead of a fine, the court may order the debtor (employer) to pay the creditor (employee) a specified sum of money for each day of delay in completing the action.
If the employer continues to refuse to issue an employment certificate in accordance with the court settlement, the court, at the employee's request, will order the employer to pay the employee a sum of money. It should be emphasized that this amount may be increased.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of September 12, 2024
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