An employer needs to be very careful and exercise prudence when the reason for termination is an employee’s job conduct. A hasty decision that does not explore the circumstances, or not comprehensively enough, may lead to the conclusion during a potential lawsuit that the termination of the employment was unlawful.
Reason for termination: clear, real and causal
The reason for termination based on the employee’s job conduct is clear when it is obvious for the employee from the termination which breach of obligation resulted in the termination of their job. The reason for termination should not be too general or clichéd. The employee’s conduct underlying the termination should be recorded precisely and in sufficient detail. It is not enough just to refer to a culpable breach of obligations by the employee as the reason for the termination, it must be specified what breaches were committed, when, how, and how many times. The reason for termination may be summarised too, bearing in mind that during a potential employment lawsuit the employer must prove the breach of obligation underlying the summary. It is recommended to refer to several facts and circumstances as the reason for the termination, and explain them in detail, rather than taking the risk that the court finds against the employer during a subsequent employment lawsuit for lack of legitimate reasons. Judicial practice is standard in that if several reasons for termination are given, only one needs to be proven to support the lawfulness of the termination. Another condition is that the reason for termination should be real and causal. The first aspect means that the conduct underlying the termination should be genuine and factual. Under the second aspect, however, the termination should make it clear that the work of the employee is not needed owing to the conduct specified in the termination, and that the employer cannot be expected to maintain the employment relationship because of this.
Reason for termination should be timely
It must be emphasised that the breach of obligation specified as the termination reason should be related to the announcement of the termination in time. Due care is needed especially when the employer intends to terminate the employee’s employment by referring to conduct that has endured for a long time. This is because the requirement of good faith and integrity stipulated by the Hungarian Labour Code is violated when the exercising of employer rights contradicts previous behaviour of the employer that the employee had reason to trust. For example, if the employer endured for years that the employee finished his/her work half an hour prior to the end of normal working hours, then this cannot be used as the basis for a lawful termination.
Burden of proof during employment lawsuit
Proving that the reason for termination is real and causal is down to the given employer, during which they frequently encounter difficulties. Yet this risk can be mitigated significantly with appropriate preparation.
1. Written warning
A written warning can be an appropriate legal tool to prove a breach of obligation of the appropriate weight and frequency that provides a suitable basis for lawful termination. For example, being late once does not provide an appropriate basis for termination, but if an employee is regularly unable to start work at the beginning of the working day, despite multiple written warnings, this can be enough for a lawful termination overall. Only by weighing up all the circumstances of a given case can it be defined how many employer warnings are suitable for proving the lawfulness of a termination during an employment lawsuit. Reference must be made to the prohibition of double judgement (ne bis in idem), according to which the employer cannot issue warnings and terminate employment simultaneously because of the same employee conduct. According to the above example, when the employer issues a written warning to the employee for being late, the employer cannot terminate their employment at the same time. Having said that, if the employee is late again, the warning previously issued because of the same breach of obligation can substantiate the employer’s decision.
2. Hearing of employee and those affected by breach of obligation
The employee affected by the termination always has to be questioned about all the circumstances of the case when the breach of obligation is committed, or immediately when the employer becomes aware of it, and they must be granted an opportunity to present their case. This is derived from the parties’ obligation to cooperate. The employee should sign the minutes of this meeting in the presence of two witnesses, and it is important that a copy of the minutes be given to the employee. If the breach of obligation affects other employees too, the employer should ask them without delay as well, and record their statements in writing according to the above.
3. One denial – one statement
For lack of other evidence, if it is only the employer’s word against the employee, announcing the termination does entail a high legal risk given that the employer will have to prove the decision if it goes to court. In such cases, it is advisable to postpone the announcement of the termination so the employer can start to document the individual breaches of obligation in order to support the lawfulness of the termination if the dispute ends up in court.
To mitigate the legal risk, in the case of a termination based on employee job conduct it is best to consider prior to issuing the termination what evidence can be used to support the lawfulness of the action during a subsequent employment lawsuit.
