To properly conduct a job termination, an employer should consider appropriate criteria when selecting the employee with whom they intend to terminate employment. It is important that this process not be a sham termination of the position. What obligations does the employer have in the event of such termination? What rights does an employee whose employment is terminated due to job termination have?
What is position elimination?
Eliminating a position is one of the reasons an employer may use to terminate an employment contract. The decision to eliminate a position is most often made as a result of structural changes, reorganization, or the need to divide responsibilities among other employees to optimize the organization's operations.
What rights does an employee have in the event of a position being eliminated?
An employee whose position has been eliminated has the same rights as an employee whose employment contract is terminated by their employer for other reasons. Primarily, the employee is entitled to:
- use of vacation leave or compensation for unused leave,
- 2 working days to search for new employment,
- severance pay for termination of the employment contract for reasons attributable to the employer, with the amount of the severance pay depending on the length of the employment period.
Liquidation or apparent liquidation of the position?
In the context of job elimination, it is important to determine whether a given position had unique characteristics or was repetitive within the employer's organizational structure. Job elimination refers to an organizational change aimed at permanently removing a given position and ceasing to perform its assigned tasks.
When do we deal with the apparent liquidation of a position?
According to established Supreme Court case law, a position is deemed to be ostensibly liquidated when a position is formally eliminated, but a new position (with a different name) is created in its place, effectively fulfilling the same duties. Such an action may be deemed ostensible if the position change does not involve a change in the scope of duties or a real reorganization of work (Supreme Court judgment of August 7, 2019, file reference number: I PK 100/18).
Furthermore, the employer has the right to decide that the tasks assigned to the eliminated position may be transferred to other employees, regardless of whether these are employees in other positions or entities outside the workplace. In such a case, the position is eliminated, even though these tasks continue to be performed for the employer (Supreme Court judgment of 20 June 2018, file reference: I PK 48/17).
The employee's right to appeal to the Court
An employee who disagrees with the employer's reason for terminating their employment contract has the right to file an appeal with a labor court. The court proceedings aim to determine whether the position termination was genuine and justified, or merely a sham. To this end, the employee must gather sufficient evidence to support their position.
It's worth emphasizing that a labor court does not review the validity or appropriateness of an employer's decision to change the organizational structure of the workplace. The court can only assess whether the elimination of the position was real and genuine, and not merely aimed at formally eliminating the employee.
Summary
In the event of termination of employment due to the elimination of a position, each situation should be analyzed individually, examining whether the stated reason for termination is genuine or merely specious. It is crucial to determine whether the reorganization was intended to actually eliminate the position, and not merely to formally change its name or scope of duties.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of November 14, 2024
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