two years have passed, since the new Labor Code (LC) came into force, awaited
and important court decisions are beginning to shape the practice of LC enforcement.
July 2019 the Panel of Judges of the Civil Cases Division of the Supreme Court
of Lithuania (SCL) has adopted a ruling (Case No. e3K-3-244-248/2019),
commenting on LC Art. 58(2)(2) application, when the employment is terminated
because of two consecutive breaches of work duties, committed within 12 months.
LC does not anticipate what is treated as the same breach of work duties, thus this ruling of SCL was really needed. As per interpretation of SCL, „this clause shall not be interpreted narrowly, as a requirement for the breaches of work duties to be identical; while at the same time, it should not be interpreted too widely – so that any type of breach of work duties, would be considered as the same.
According to SCL, the breach of work duties shall be deemed the same, if it was done in the same scope of activity, when wrongfully performed duties are of a similar nature, e.g.:
- breach of financial discipline;
- breach of public procurement law;
- breach of handling public and private interests;
- breach of work safety requirements;
- failure to appear at work on time or any other breach
of working time regulations, etc.
important for the employer to evaluate the exact breaches made by the
employee and determine, whether they truly can be perceived as the same,
simultaneously taking into consideration the consequences that were created.
The SCL also explains, that whether the breaches of work duties might be perceived as the same, also depends on the scope and variety of functions and duties, performed by the employee, e.g.:
- different criteria might be applied to managing employees, responsible for overall operation of the company or employees covering a wide range of activities;
- and the opposite – employees, covering a narrow range
of activities, that are specifically defined.
it is for the court to determine on a case-by-case basis when dismissing an
employee based on the LC provision in question, whether a previously recorded
infringement and a subsequent one within 12 months can be regarded as the same.
this particular case the employer referred quite generally to the breaches
committed by the employee, formally directing to the provisions of the
employer's statutes and the job description of the employee, without commenting
further on the specific breaches made. According to the SCL, generally
described breaches are not sufficient to determine whether the breaches committed
are the same, meaning they have to be exactly and accurately formulated.
In the light of the ruling of the SCL, the employer, when seeking to dismiss the employee for the breaches committed by him/her and in order to reduce the risk of possible appeal and dispute, must first consider:
- what exact breaches of work duties were made;
- whether the second breach is done within 12 months, after the employee was given notice about the first breach;
- whether the breaches made might be treated as the same (the employer must properly and clearly indicate why the breaches are considered the same);
- whether the employee was correctly noticed about the first breach and employer’s decision regarding the breach, in line with the procedure established in LC Art. 58;
- whether the documents,
where the breaches are documented, correctly disclose the circumstances and
details of the violations.
kindly note, that Leinonen Legal Team is ready to assist you with all labor law
related questions, including preparation of necessary documentation and
relevant legal advice.
The information was prepared by Leinonen Legal Team.
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