In Judgment No. Rev2 1986/22 dated November 24, 2023, the Supreme Court took the position that the days during which the employee was on sick leave cannot be counted in the eight-day period within which the employee is obligated to respond to the offer of an annex to the employment contract, starting from the date of receipt of the offer.
Below, we analyze the reasons for the judgment.
Background
The defendant employer presented the employee with an offer to conclude an annex to the employment contract to change the elements for determining salary. The employee received the offer but refused to confirm receipt by signing it.
The employer prepared an official note stating that the employee received the offer, refused to sign it, and that the offer was posted on the employer’s bulletin board.
After the expiration of the eight-day period from the posting on the employer’s bulletin board, the employer considered the offer as delivered to the employee, deemed that the employee had not accepted it, and issued a decision to terminate the employment contract on the grounds that the employee refused to conclude the annex to the employment contract, in accordance with the Labor Law. The termination decision was delivered to the employee by mail.
A key circumstance in this case was that the employee, starting the day after receiving the offer, and throughout the response period, was temporarily incapacitated (i.e., on sick leave). According to the reasoning of the contested termination decision, the employer included the days of sick leave in the eight-working-day period given to the employee to respond to the offer.
Relevant Provisions
The Labor Law stipulates that the employer may offer the employee a change to the agreed working conditions (annex), including changes to salary elements, performance, salary compensation, increased salary, and other employee benefits, as was the case here.
A written offer or notice of the reasons for the offer of an annex to the employment contract delivered to the employee along with the annex, must include: the reasons for the proposed annex, the period within which the employee must respond, which cannot be less than eight working days, and the legal consequences of not signing the annex. Additionally, the law provides that the employee is deemed to have rejected the offer if they do not sign the annex within the given period.
Further, the Labor Law stipulates that an employee’s employment can be terminated if there is a justified reason related to the employer’s needs, including refusal to conclude the annex to the employment contract for changes to salary elements.
Court Decisions
The lower instance courts found that the contested termination decision was lawful because the employer had followed the procedure prescribed by the Labor Law.
However, the Supreme Court found that the appellant’s revision rightly pointed out the incorrect application of substantive law.
Specifically, the Supreme Court took the view that the days when the employee was on sick leave could not be counted in the aforementioned period, so it could not be considered that the employee had rejected the conclusion of the new employment contract and that the conditions for terminating the employee’s employment had been met. Therefore, the Supreme Court considers the contested termination of the employer to be unlawful.
Conclusion
The Supreme Court’s judgment deviates from previous caselaw.
This is supported by the following position of the Constitutional Court taken in Decision No. Už 637/11 dated October 31, 2013:
“The Constitutional Court notes that the contested judgments of the second-instance and revision courts are based on a unified stance that the defendant employer carried out the delivery of the offer an annex to the agreed working conditions in accordance with the law, and that after the expiration of the deadline for response, which was counted after the eighth day from the posting of the offer on the employer’s bulletin board, the conditions for terminating the employment contract were met, in accordance with Article 179, Item 7 of the Labor Law. The Constitutional Court assessed that the reasoning of the contested judgments is based on constitutionally acceptable application of substantive law.
According to the Constitutional Court’s understanding, by analogy, it can be concluded that the delivery of an offer an annex to the agreed working conditions is carried out in the same way as a decision concerning the realization of rights, obligations, and responsibilities of the employee, especially as the norms regulating the procedure for concluding the so-called annex to the employment contract do not contain a detailed provision on how to deliver this act. (…) The Constitutional Court finds that regarding the delivery of the offer to conclude an annex to the employment contract, in all other respects, the provisions of Article 185, paragraphs 2 – 4 of the Labor Law apply.“
In this case, the offer of an annex was delivered to an employee during their annual leave, and the response period also expired during the annual leave.
Given the above legal provisions and the Constitutional Court’s conclusions, the reasoning of the Supreme Court’s judgment is unclear.
This position could be problematic for future employer practices in cases of organizational changes and work process needs, especially considering that the duration of an employee’s temporary work incapacity is an uncertain factor, potentially lasting for an extended period (months, a year, or longer).
Finally, the question arises whether this position will lead to similar conclusions regarding other labor law institutes, such as the delivery and response to a warning about reasons for terminating the employment contract, where the employee also has a deadline to respond, and there is a mandatory legal deadline for sanctioning in disciplinary procedures.
We will have to wait and see.
This article is for informational purposes only and does not constitute legal advice. If you need additional information, feel free to contact us.
By Borinka Dobrnjac, Senior Associate, PR Legal
