Labour Code and electronic delivery to employers
Last October, the Labour Code introduced a number of innovations, including, among other things, the regulation of electronic delivery from employee to employer and vice versa. In this article, we will discuss the issue from the perspective of the employee serving the employer, as the rules for electronic service differ in both cases.
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Modes of service of documents
First of all, it is important to note that the Labour Code provides for different modes of service for different documents. The general mode of service under the Civil Code simply governs the service of all documents that are not covered by a special mode of service under the Labour Code. These documents include (now also) employment contracts or agreements for work performed outside the employment relationship. In the case of the general regime, the expression of intent is served on the other party as soon as the other party has had the opportunity to acquaint himself with its contents. In practice, this will typically be
the sending of an e-mail message.
The following documents are then subject to the special regime of service under the Labour Code:
- notice,
- immediate termination of employment,
- termination during the probationary period,
- other documents relating to the termination of the employment relationship or legal relations based on a performance or employment agreement (e.g. letters of reproach),
- removal from or resignation of a managerial post; and
- the pay slip or salary slip.
Newly, as of 1 October 2023, the Labour Code does not include agreements on termination of employment/agreements on the termination of a PPA/PLA in this special regime. Therefore, concluding a termination agreement other than by signing a classic "paper" document is easier than ever before.
Electronic delivery of the employee to the employer in a special regime
The electronic service of an employee to the employer under the special regime is then regulated by Section 337 of the Labour Code, according to which an employee may deliver a document subject to the special regime of service to the employer at an electronic address (e-mail) that the employer has notified to the employee for this purpose; typically, this e-mail is specified in the work rules or some other internal directive. Only the 'ordinary' signature of the employee is required for a document so served,
i.e. it is not necessary for the employee to sign the document with a recognised electronic signature.
The Labour Code provides that a document sent in this way is then served on the date on which the employer acknowledges receipt of the document by the employee. If the employer does not acknowledge receipt of the document to the employee within 15 days, the last day of this period shall be the date of fiction of service. However, service can never be effected in a situation where a document sent to the employer's electronic address is returned to the employee as undeliverable (typically if the e-mail box is full or if the address entered does not exist).
Of course, the employee may also deliver the above-mentioned documents to the employer via a data mailbox. The Labour Code does not require the employer's acknowledgement of receipt of the document in the case of service via a data box, and the document is served at the moment the employer logs into his/her data box. If the employer does not log in to the data box within 10 days from the date of delivery of the document to the data box, the document shall be deemed to have been delivered on the last day of this period. This method is thus preferable if you are in a hurry for delivery (or fiction, see above).
Conclusion
In view of the above, it is clear that the service of documents in the context of employment relations under the Labour Code is a complex issue. In practice, care must be taken to ensure that the correct method of serving documents is chosen, as any error in this process can lead to unnecessary disputes and, ultimately, to unintended legal and financial consequences for both parties to the employment relationship. Only prevention and early consultation with a professional can prevent these unpleasant consequences.