One of the employer’s obligations when terminating employment is to issue a confirmation of employment. The obligation applies to all employees (both employment contracts and contracts for work) without respect to the form of the employment termination.
The obligation of the employer is not related to any cooperation from the side of the employee, that’s why it is not necessary for the employee to ask for the confirmation issuing and employer mustn’t condition the confirmation issuing e.g. by returning of work aids and others.
Employer’s obligation to issue the confirmation of employment relates to the employee him/herself, that’s why employer can´t fulfil the obligation by issuing the confirmation for example to the new employee’s employer or to employee’s wife.
Act No. 262/2006 Coll., Labour Code, as amended (hereinafter referred to as the “Labour Code”) doesn’t stipulate the exact moment of the issuing of the confirmation to employee. Considering the formulation of Section 313(1) of the Labour Code that the confirmation should be issued "when employment terminates", employer can only fulfil his obligation in relation to terminating of the employment relation.
Only at the moment of the employer knowing about the termination of employee’s employment and the date of termination, employer can fill in into the confirmation all necessary details stated in Section 313(1)a) to f) of the Labour Code.
The deadline of fulfilling the obligation will be the end date of the employment. The given conclusion can’t even be changed by the fact of employee or employer claiming the invalidity of the employment contract termination in proceedings according to Section 72 of the Labour Code.
Until court lawfully confirms that the employment termination is invalid, the terminating legal action is considered valid.[1]
However, problematic cases usually occur when employee stops going to work without excuse and employer has to deliver the notice or immediate cancellation via provider of the mail services.
In such cases employer has to wait until employee collects the documentation, or until deadline of the documentation collection is unfulfilled (Section 336(4) of the Labour Code). Only by the document collection by the employee or by non-keeping of the documentation collection deadline at the provider of the mail services, the moment of the employment termination finally occurs.
Practice of employers sending for example termination of employment in probation period and employment record in one parcel has to be refused as incorrect. In such cases employer can’t foresee the exact date of the employment termination and so he can’t handover the employee the properly filled-in confirmation of employment according to Section 313(1)a) of the Labour Code (due to unfilled or incorrectly filled-in end date of the employment).
In the above-mentioned cases it is necessary to first send the employee the document containing termination of employment, to wait for the information about delivery and then immediately send the employee the employment record. If the unaccepted notice came back to employer for example on 10 January 2017, but the employer still sent the employment record on 25 January 2017, the employer didn’t fulfil his/her duties according to Section 313 of the Labour Code because confirmation of employment wasn’t issued at the moment of employment termination.
In such cases employer faces fine from the side of State Labour Inspection Office and also possible obligation for compensation for damage caused to employee if the employee proved to be damaged because of late issuing of the employment record.[2]
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[1] Bělina, M., Drápal, L. a kol.: Zákoník práce. Komentář. 2nd edition. Praha: C. H. Beck, 2015, p. 1228.
[2] Supreme Court judgement, file No. 21 Cdo 1491/2002 as of 20 March 2003: If employer doesn’t fulfil the obligation to issue the employee confirmation of employment when terminating the employment (Section 60 of the Labour Code) [note: now it is Section 313, Labour Code], he/she is liable for any loss caused to employee according to Section 187(2), Labour Code [note: Section 265(2), Labour Code]. Loss which the employer is obliged to compensate to the employee can also lie in a loss of earnings of the employee with another employer if the employer refused to sign employment contract without submitting the employment confirmation.