The principle of employment protection, stemming from a number of provisions of the Labor Code, manifests itself on many levels. One of these is the possibility of reinstating a specially protected employee whose employment contract has been terminated. If the matter is brought to court, such an employee may file a motion for injunctive relief by ordering the employer to continue employing them, although they must merely demonstrate a legitimate interest in the injunction.
The employer's obligation to continue employing the employee
The obligation to continue employing an employee until the final conclusion of the proceedings is a temporary measure of protection aimed at protecting the employee's interests during the ongoing legal proceedings.
This institution involves the continued employment of the employee, as if the employment contract had not been terminated. This means that the employee's continued employment is enabled, as directly indicated by the term "continued employment" contained in the regulations.
Initiative to provide security
Security is granted at the initiative of the party. An authorized employee may submit this request at any stage of the proceedings until the final conclusion of the proceedings.
How is security granted?
If an employee files a motion for security, the law requires the court to grant a specific form of security if the statutory requirements are met. Can the court then refuse to grant security? It certainly can – given the obvious unfoundedness of the claim. However, at the initial stage of the proceedings, the court may not have sufficient evidence to deem the claims manifestly unfounded.
To obtain security, a legal interest must be substantiated, which means the employee must substantiate their claims raised in the lawsuit. The point here isn't to prove them, but to establish plausibility – the court must be convinced that there's a probability that the employee is right. Evidence rules don't apply to such substantiation – it's a more informal process.
The security provided in the form of an order for the employer to employ the employee until the final conclusion of the proceedings requires the maintenance of the existing working and pay conditions, i.e. the same as before the termination of the employment relationship.
Repealing a final security decision
In labor law cases, the only basis for requesting the annulment of a final decision granting security is the existence of grounds for termination of the employment contract without notice due to the employee's fault, and the burden of proof in this regard rests with the employer. It should be emphasized that in exceptional circumstances, a court may refuse to grant security or annul a final decision in this regard, citing general provisions of labor law, i.e., principles of social coexistence or the socio-economic purpose of this right. This requires a case-by-case assessment, citing the specific subjective right that, according to the court, was violated by the employee.
This article is for informational purposes only and does not constitute legal advice.
Legal status as of August 1, 2024
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