Dismissal for incompetence vs. for violating work discipline

Dismissal for incompetence vs. for violating work discipline
Dismissal for incompetence vs. for violating work discipline

Inability, slowness, non-compliance with work performance standards, low work productivity are not violations of work discipline. Nor lack of qualifications. But even that can result in dismissal.

In practice, employers sometimes mistakenly equate dismissal with unsatisfactory work results, or even for lack of qualifications, with dismissal for violating work discipline. At the same time, these are two completely different facts, different grounds for dismissal. And if they mix them up, use them incorrectly, they can have a problem. An employee can successfully defend against termination in court and still receive monetary compensation. Of course, we don’t support lazy people, but rules are rules.

What does the Labor Code say?

§ 52 letter f) of the Labor Code allows the employer to give notice to the employee:

  • “… if the employee does not meet the prerequisites established by legal regulations for the performance of the agreed work or if, through no fault of the employer, does not meet the requirements for the proper performance of this work…” This is actually one separate reason for dismissal. It can be abbreviated as dismissal for lack of qualifications. (Perhaps we will discuss it some other time.) However, the provisions of the Labor Code continue:
  • “… if the non-fulfillment of these requirements is based on unsatisfactory work results, it is possible to give notice to the employee for this reason only if he was the employer during the last 12 months requested in writing to remove them and the employee did not remove them within a reasonable time.” And this is another, second, special reason for termination that we are now interested in: “employee incapacity”.

Those who hinder work do not necessarily violate work discipline

Both of the reasons for dismissal, and this is crucial, are different from dismissal for violating labor discipline. The Labor Code remembers him elsewhere. Inability, non-productivity is not a violation of work discipline. Even an incompetent employee can actually be an exemplary member of the work team – except for the work results, of course. He goes to work on time, does not abuse working time to take care of private matters, does not abuse the employer’s property, but is still a burden or an obstacle for the company…

Read also: Violation of work duties: for which offenses can an employer fire you for an hour?

When the employer has a problem and an incompetent employee an undeserved advantage

The fundamental problem in practice, if the employer confuses the termination procedure for violations of work discipline and the termination procedure for incapacity or unsatisfactory work results, is that the grounds for dismissal for incapacity require prior notice to the employee, while violations of labor discipline only sometimes. A problem with the so-called letter of reprimand may arise in the event of an incorrect evaluation of the reason for termination to be used and which provision of the Labor Code to proceed with.

Source: Depositphotos

An incompetent employee must be given a chance: a letter of reprimand or a call for correction is important

A letter of reprimand is a popular term for what the Labor Code says notification of the possibility of termination, or a call to eliminate deficiencies in work or minor transgressions against labor discipline.

In practice, it is a matter of whether such a letter of reprimand was sent to the employee at all and properly delivered. And whether such a letter of reprimand fully corresponds with the subsequent termination and the reason for termination contained therein.

Read also: 5 cases when you can get fired even if you are on disability

In the end, less strictness of the employer can be an advantage

If the employer

  • terminates the employee for the most serious violation of labor discipline, in the words of the Labor Code “in a particularly rude manner” that it would be possible also result in immediate termination of employmentbut the employer does not want to exacerbate the problem and is satisfied with a less severe notice or slower dismissal from work, or
  • terminates the employee for a serious breach of work discipline (i.e. of a somewhat lesser intensity),

is not obliged to warn the employee in any way. They don’t have to send him any letter of reprimand. He’ll just resign right away. And that is precisely the problem when the reasons for termination are confused, consisting in the fact that when terminating for unsatisfactory work results (inability), the employer must warn the employee. Otherwise, they will not fulfill the conditions for the validity of the termination.

Strangely enough, terminations for incapacity are more likely to comply with the procedure for terminations for persistent less serious violations of work discipline, i.e. for the least serious violations of work discipline. The employer may terminate the employee for persistent less serious violations of work discipline, if he has been warned against termination for the given reason during the last 6 months.

If something must not be older than 1 year, it is more likely to comply if it is not older than half a year

So even if the employer evaluates the employee’s poor work performance (inability) incorrectly as a violation of labor discipline, but only as consistent and less serious (that is, as repeated minor offenses against labor discipline), there will be no problem. All the more so because a letter of reprimand not older than 6 months is enough. Whereas a letter of reprimand not older than 1 year is required for dismissal due to incapacity. So a not-so-old written reprimand complies with the law.

Read also: What does the employer have to do when he wants to fire an employee?

They do not decide the paragraphs, but the description of what bothers the employer and why he is dismissing the employee

Decisive for the correctness of the termination is how the employer describes the reason for the termination. He specifies exactly what bothers him about the employee. And then it doesn’t matter at all that he calls it a violation of work discipline, even if it is unsatisfactory work results (incompetence). The notice will be valid. Indeed, the Labor Code orders the employer that “he must factually define the reason in the notice in such a way that it cannot be confused with another reason”. And it doesn’t matter at all that he mentions the wrong provision of the Labor Code. When there is a dispute, the court does not care what section, what paragraph, what letter the employer put in the notice. The court does not review the “paragraphs”, but the described factual reasons and context of the statement.

Therefore, if the employer does not commit another mistake for which the termination could be evaluated as invalid, there is no problem in confusing the termination for persistent less serious violations of labor discipline and the termination for the employee’s incapacity. Both require a warning. If the employer delivered it to the employee, everything is fine. The problem arises if the employer was too strict and evaluated the employee’s incapacity as a violation of labor discipline of a higher intensity, when there is no need for a warning before dismissal. Then the letter of reprimand is missing and the dismissal for incapacity can be declared invalid by the court if the employee defends himself.

Read also: When can an employer (not) fire you?

When does a problem arise with the confusion of reasons for termination

Therefore, there may be a problem if the employee defends himself in court, if instead of being dismissed for incapacity, he was dismissed for violating labor discipline, and that in a particularly rude or serious manner. However, if it is not actually a violation of labor discipline, but rather unsatisfactory work results, the obligation to deliver a written request to the employee to eliminate the unsatisfactory results during the last 12 months before the delivery of the notice will be missed. (We remind you that part of this challenge or letter of reprimand must also include the provision of a reasonably long period for correction, i.e. the removal of unsatisfactory results.)

However, if the employer had long-term incapacity of the employee for violating labor discipline in a less serious way, and at the same time complied with everything required by the Labor Code, mainly sent the employee a letter of reprimand where he properly described everything, the problem should not arise.

The employer must hold the boarded line

Termination for unsatisfactory work results must be justified by the failure to eliminate only those deficiencies in the work that the employer criticized the employee in the call for their elimination (reprimand letter). On the other hand, dismissal due to persistent violations of work discipline can also be justified by different (at least three) acts, for example, by arriving late and leaving early, as well as smoking in the workplace etc.

Read also: Termination during the probationary period, in which cases are you protected against it?


The article is in Czech

Tags: Dismissal incompetence violating work discipline

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