An option to impose an obligation to employ an employee between the first and second instance phases of a legal action has been introduced.
Before the change in the Code of Civil Procedure, the court was only able to impose this obligation if the termination of employment had been considered ineffective, that is, if the verdict came before the end of the notice period, which never happened. Now, if an employee wins, courts will always be able to impose this obligation to restore the employee to his or her post following the first instance phase of court proceedings, regardless of the time that has elapsed (e.g. after four years). It becomes more important from the beginning of the process not only to argue that the termination is justified, but also to claim that the potential reinstatement in work would be impossible or pointless.
The above change has led to a wide-ranging discussion regarding the possibility of dismissing an employee during the period in which he or she is the subject of a continued employment order. Some commentators exclude the possibility of terminating the contract of an employee in these circumstances, but allow the possibility of terminating the contract without notice. However, the new provision does not regulate this issue and the practice of adjudicating in this respect will only arise.
In our opinion, if there are circumstances justifying termination upon notice or without notice, the employer has the right to terminate the employment relationship in one of the ways described above. This is because the obligation to maintain employment is not a type of special protection, but a procedural device in a specific dispute regarding a specific notice of termination or termination without notice. There are no grounds to extend this to circumstances other than those covered by the process. After all, it is impossible to imagine an employer being obliged to fulfill an obligation to give continued employment in a situation where, for example, the employer entity has been liquidated, or where the employee has committed a grave violation of his or her duties (e.g. theft, or consuming alcohol at work). Given the absence of case law, the circumstances of each potential case for exemption should be investigated with great care.