EMPLOYMENT CONTRACTS, LEGAL ADVICE ON LABOR LAW ISSUES, LABOR LITIGATION, CONSULTANCY
Don’t know what your rights are as an employer or employee?
Do you want to draw up an employment contract or get an opinion on it?
Have you been dismissed?
– Employment cases and litigation.
– Legal representation in connection with labor inspections, fines, and social security matters.
WHAT SHOULD YOU LOOK OUT FOR WHEN STARTING AN EMPLOYMENT?
How is the employment relationship established?
The employment relationship is established by an employment contract, which must be in writing. The employment contract must be in writing. Failure to do so can only be invoked by the employee within 30 days of starting work.
The employment contract must contain the personal details of the employer and the employee, the employee’s basic salary, the employee’s job title and the place of work. In addition, the duration of the employment relationship must be specified, failing which the employment relationship shall be concluded for an indefinite period.
In the employment contract, the parties may agree on any matter, but they must in any case agree on the basic salary and the job description.
What information should the employee receive?
The employer must inform the employee in writing within 15 days of the start of the employment relationship at the latest
– of the daily working hours,
– wages and other benefits,
– the method of accounting for wages, the frequency of payment of wages and the date of payment,
– the duties of the job,
– the amount, method of calculation and payment of leave, and
– the rules for determining the period of notice applicable to the employer and the employee, and
– whether the employer is covered by a collective agreement, and
– who exercises the employer’s powers.
What constitutes the beginning of the employment relationship?
The date of the beginning of the employment relationship must be specified in the employment contract. If not, the employment relationship starts on the day following the conclusion of the employment contract.
The parties must not engage in any conduct between the conclusion of the employment contract and the date on which the employment relationship begins that would prevent the employment relationship from being established. During that period, either party may withdraw from the employment contract if, after the conclusion of the employment contract, there has been a material change in his circumstances which would make it impossible or disproportionately prejudicial to the performance of the employment relationship.
How can a probationary period be negotiated?
The parties can agree a probationary period of up to 3 months from the start of the employment contract. If the probationary period is shorter than this, the parties may extend the probationary period up to a maximum of one time. The duration of the probationary period may not exceed 3 months even if it is extended. A collective agreement may derogate from the above but may provide for a maximum probationary period of 6 months.
Where must the work be carried out?
The new Labor Code has abolished the concepts of fixed or shifting place of work and work outside the normal place of work. The law only stipulates that the place of work of the employee must be specified in the employment contract. In its absence, the place of work is deemed to be the place where the employee habitually carries out his work.
What kind of information sheet can the employee sign?
The employer may require the employee to make a declaration or provide personal data which are relevant for the establishment, performance, termination (cessation) or other purposes of the employment relationship. An employee may only be subjected to an aptitude test which is required by an employment rule, or which is necessary for the exercise of a right or the performance of an obligation defined in an employment rule.
The employer must inform the employee about the processing of his/her personal data. The employer may disclose facts, data and opinions concerning the employee to third parties only in cases specified by law or with the employee’s consent.
For fulfilling the obligations arising from the employment relationship, the employer may transfer the employee’s personal data to a data processor, stating the purpose of the data transfer, as defined by law. The employee must be informed of this in advance. The data relating to the employee may be used for statistical purposes and may be transmitted for statistical purposes without his/her consent and in a non-personally identifiable manner.
How can the employer check?
Employers may only monitor employees in the context of their conduct in the employment relationship. In this context, the employer may use a technical means, which must be notified to the employee in writing in advance. The employer’s monitoring and the means and methods used in the course of such monitoring must not involve any violation of human dignity. The employee’s private life may not be monitored.
Full-time or part-time?
Generally, the employment relationship is established for full-time work. However, this may be derogated from in the employment contract, and, in the case of part-time work, the principle of pro rata temporize applies to pay.
Fixed-term or indefinite employment relationship?
Unless otherwise agreed, the employment relationship is of indefinite duration.
If the parties agree on a fixed-term employment relationship, its duration must be determined by calendar or other suitable means.
The duration of a fixed-term employment contract may not exceed 5 years, including the duration of a new fixed-term employment contract that is extended and entered within 6 months of the termination of the previous fixed-term employment contract.
If the employment relationship requires an official permit, it may be established for a maximum duration specified in the permit. If the permit is renewed, the duration of the new fixed-term employment relationship, including the duration of the employment relationship previously established, may exceed 5 years.
The fixed-term employment relationship may be extended or re-established within 6 months of the termination of the fixed-term employment relationship only if there is a legitimate interest on the part of the employer. The agreement must not be intended to prejudice the employee’s legitimate interest.
WHAT TO LOOK OUT BY TERMINATION OF EMPLOYMENT?
When can you give notice?
An employment relationship of indefinite duration can be terminated by either the employee or the employer by giving notice. However, the parties may agree that the employment relationship cannot be terminated by notice for a maximum period of 1 year from the date of its beginning.
The employment relationship cannot be terminated by notice in certain cases (prohibitions on termination), such as during pregnancy, maternity leave or unpaid leave following childbirth. And for certain categories of persons, such as people who are about to retire, single parents, and people receiving rehabilitation benefits or allowances, the employee can only be dismissed if certain conditions are met.
How should the reasons for termination be given?
The employer must give reasons for termination. The reason for termination may be related to the employee’s conduct or ability in relation to the employment relationship or to the employer’s operations. A change in the employer’s person alone cannot be the reason for the employer’s termination. An employer is not obliged to give reasons for terminating an employment relationship of indefinite duration by giving notice if the employee is classified as retired.
What is the notice period?
The period of notice starts at the earliest on the day following the day on which the notice is given. The normal notice period is 30 days but increases in proportion to the number of years worked.
In the event of dismissal, the employer must release the employee from work for at least half of the notice period. The fraction of a day shall be counted as a whole day. The employee shall be released from work in accordance with his wishes, in no more than two instalments. During the period of suspension, the worker shall be entitled to an absence allowance, unless he would not otherwise be entitled to remuneration. The wages paid may not be recovered if the worker has been definitively suspended from work and the circumstances which preclude payment of wages arise after the suspension.
What severance pay is payable?
The employee is entitled to severance pay in the event of dismissal by the employer. To be entitled to severance pay, the employment relationship must have lasted for the period laid down by law at the time the notice of termination is given, or the employer ceases to exist.