The Supreme Court judgement from October 17, 2012, file no. 21 Cdo 2596/2011, dealt with the issue of whether the employer is entitled to terminate the employment instantly in the case where the employee pretends work. In the said case, the employee pretended to be at work by swiping in his entry to work in the morning, then leaving the workplace immediately and spending the rest of their working day elsewhere, doing their own things. The employee then returned to the workplace, not long before the actual end of the working hours, and swiped their card to mark the leaving time as if they had spent the entire working day at the workplace.

Abusing employer’s property

The Supreme Court assessed the aforementioned behaviour as a breach of the employee’s basic duties. According to the Supreme Court, the employee is obliged to remain loyal to their employer and protect their property from any damage. Employee’s pretending of work was classed by the Supreme Court as a so called indirect abuse of the employer’s property. Not only did the employee fail to protect the employer’s property, they even attempted to gain personal advantage (salary for allegedly done work) at the employer’s expense. The Supreme Court deduced that such situations constitute gross breach of duties by the employee, which may be a reason for an instant notice of the termination of employment by the employer.

Conclusion

The judgement affects to the practice of enterprises and other employers. This is the first time the Supreme Court has defined the concept of indirect abuse of the employer’s property, which may be punished by an instant notice of the termination of employment. Employee’s pretending of work has been included in the concept of direct and indirect abuse of the employer’s property. However, other ways of employees’ behaviour, which occur in practice fall into this category. Abuse of the employer’s property may include, for example, using the company car for private purposes, making private phone calls from a company mobile phone, or other activities when the employee uses the employer’s property exclusively for personal benefit (not for performing work). Hence, this gives the employer a fast and cost effective possibility to terminate the employment of such an employee who committed the abuse, theft or damage of the employer’s property or who pretended work and tampered with time sheets.

The fact that the employee committed abuse of the employer’s property does not necessarily have to constitute a reason for an instant notice. The Supreme Court adds that other circumstances of the individual case should be taken into account when assessing the validity of an instant notice of termination. Hence, the Court takes into account the employee’s personality, the position they hold, their attitude to work duties until now, the time and situation in which the breach of work duties occurred, the scope of employee’s fault, the manner and degree in which the employee breached the specific duties, the consequences the breach of the said duties had on the employer, etc. The Labour Code leaves it at the Court discretion to ensure the judgement on validity of instant notice of termination corresponds to whether it is fair to require the employer to continue employing the employee.

Should you need to know more on the subject please contact partner to the firm, Mr. Jiří Kučera, tel: +420 273 134 333 or e-mail:jkucera@kuceralegal.cz