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Dismissal for serious breach in Slovakia: a high bar for employers

Written by
NITSCHNEIDER & PARTNERS largest boutique firm focusing on HR law.
Authors
Marek Bugan
NITSCHNEIDER & PARTNERS
Slovakia
13.08.21
3
The Slovak Supreme Court has clarified the standard of proof employers need to meet in dismissing an employee for a serious breach of discipline.

In 2021, the Slovakian Supreme Court dealt with a case of invalid termination of employment by dismissal for a serious breach of work discipline (Article 63 (1) (e) of the Labour Code): corruption.

The employee worked as a chief dispatcher for bus trips. According to the statement of reasons for the dismissal, the employee’s corruption was supposed to consist in accepting bribes from bus drivers, in return for which he assigned them more advantageous (better paid) bus trips. The employee did not agree with the reasons for dismissal and applied to the court for a declaration of invalidity of the termination of employment.

For a successful defence, the employer had to prove that there was in fact corruption in the workplace. Both the District Court and the Regional Court agreed that the employer had not proven corruption in the workplace. One of the reasons was that the employer learned about the reasons for the dismissal indirectly from notifications from the bus drivers’ representatives. This showed he had not personally proved the reason for the dismissal. This was also evidenced by the wording of the disputed statement, which conveyed suspicion of corruption by the plaintiff rather than certainty. According to the courts, it was not clear from the content of the statement that the defendant was convinced of the plaintiff’s unlawful conduct, nor did it contain objective facts which would prove his corrupt conduct.

On appeal, the employer argued that he had sufficiently proved corruption when one of the witnesses admitted the provision of a bribe of EUR 100 and other witnesses testified that they had heard of bribes from drivers for more favourable rides.

The employee claimed that there was no corruption. He challenged the witness statements by stating that none of the witnesses had confirmed the plaintiff’s allegedly corrupt behaviour; they did not remember who had told them and when. On the contrary, one witness stated that she was present at the discussion when the employer’s representative asked another employee to secure drivers who would testify against the plaintiff.

The employer was of the opinion that the courts required him to prove corruption too strictly. As part of the appeal, the employer asked the Slovakian Supreme Court to clarify whether an employer is obliged prove a breach of work discipline to the degree of probability required in criminal proceedings before terminating an employee due to a serious breach of work discipline, or whether the burden of proof is lower in civil proceedings.

The Supreme Court answered the question as follows: the courts in the main proceedings concluded that there was talk in the employer’s company that the employee in question had allocated advantageous bus trips to drivers, in return for which they provided him with various gifts. But it cannot be objectively concluded from this that the applicant committed this conduct. Not only does it follow from the nature of the dispute (a dispute with the protection of the weaker party, i.e. the employee) that it insufficient to accept a likely factual conclusion about the employee’s corrupt behaviour (even with a high degree of probability); it is necessary to prove this factual conclusion.

In conclusion, termination of employment due to a breach of work discipline in Slovakia is not an easy process. It is always necessary to examine the actions of the employee, to have evidence proving the breach, and to take into account other decisive factors. To assess this, the employer should be aware of wide decision-making practice of Slovak courts, which defines these factors (for example, a judgement of the Slovakian Supreme court in case no. 5 Cdo 74/2008, dated 29 September 2009).

Case no. 5Cdo/85/2019