Serving notice and immediate termination: the rules of Section 38 of the Labour Code

Notice sent by email, dropped into a letterbox, or handed to the employee’s wife. Such service looks practical, but in a dispute about the validity of a termination it often decides the case before the court reaches the grounds at all. Notice and immediate termination must be in writing and served, otherwise they are invalid (Section 61(1) and Section 70 of the Labour Code, Act No. 311/2001 Coll.). The rules on service sit in a single provision, Section 38.

The order of the methods of service

Documents of the employer concerning the creation, change and termination of employment, or the creation, change and extinction of the employee’s obligations arising from the employment contract, must be served on the employee into their own hands. […] The employer serves documents on the employee at the workplace, at their home or wherever they may be found. Where this is not possible, the document may be served by a postal undertaking as a registered item.

— Section 38(1) of the Labour Code (unofficial English translation)

Personal delivery therefore takes precedence, at the workplace, at home or anywhere else. The post is only the second option, where personal service is not possible. The employer sends the item to the last address of the employee known to it, by registered post with an acknowledgement of receipt and the note “into own hands”; the collection period must not be shorter than ten days (Section 38(2)). The employee is required to notify a change of address themselves (Section 81(g)), which is why it is worth keeping their current service address in the personnel file.

Email, text messages and messages in a workplace application are not among the methods of service in Section 38. Section 38a allows electronic form for information the employer provides to the employee, not for the documents by which employment is terminated. Email may serve as notice that a document is on its way, not as its service.

When service is complete

The duty to serve is discharged as soon as the employee accepts the document, as soon as the post returns it to the employer as undeliverable, or if the employee frustrates service by an act or omission; service also takes effect where the employee refuses to accept the document (Section 38(4)).

Where acceptance is refused at the workplace, the evidence decides. In a dispute before the Supreme Court of the Slovak Republic under case number 9Cdo/290/2020, the employer read the notice out to the employee at a meeting in the presence of three people, the employee refused to accept it, and one of the witnesses recorded that on the counterpart with the time. The court of first instance accepted that procedure as proper service, although the notice ultimately failed on other grounds. A short record with the date, time, names of witnesses and a description of what happened helps.

Service must be on the addressee, not on their relatives. In the dispute 9CdoPr/11/2023, the item containing an immediate termination was accepted by the employee’s son. The courts declared the immediate termination invalid because it had not been served into the employee’s own hands, and the fact that the employee later learned of the document made no difference. The appellate court added that without proper service the two-month period for bringing an action under Section 77 had not even begun to run. The Supreme Court refused the employer’s appeal on points of law.

Service and time limits

For immediate termination, the document must be served within the time limit, not merely signed or dispatched (Section 70). For notice given for a breach of work discipline, a two-month period from discovery of the grounds applies (Section 63(4)). The date of service matters for other notices too, because the notice period begins to run only on the first day of the month following service (Section 62(7)); notice served on the first day of a month instead of the last day of the preceding one pushes the end of employment back by a whole month. When serving by post, allow for the collection period and for the time needed to return the item.

Before serving, check the address in the personnel file and prepare two counterparts of the document: one for the employee and one on which they confirm receipt with the date, or on which witnesses record a refusal. If you serve by post, keep the proof of posting, the acknowledgement of receipt and the returned item unopened, so that in a dispute you can prove what you sent and when. All these records belong in a single file together with the document, because where service is not proven the court may never reach the grounds for termination at all, as the dispute described above shows.

In the opposite direction the rule is simpler: the employee serves their documents at the workplace or as a registered item (Section 38(3)). How to serve an employee who does not come to work and does not respond is covered in our answer on an employee who has not come to work and is not responding.

For comparison: Czech law

The Czech Labour Code (Act No. 262/2006 Sb.) is more modern as regards service. Alongside delivery at the workplace or wherever the employee may be found, it allows service into a data box and electronically, and the post comes into play only where service at the workplace is not possible (Section 334a of Act No. 262/2006 Sb.). Electronic service, however, requires the employee’s consent in a separate written declaration stating an address not at the employer’s disposal, and the document must bear a recognised electronic signature; if the employee does not confirm receipt, it is deemed served on the last day of a fifteen-day period (Section 335 of the Czech Act). For a data box, service is deemed to occur after ten days (Section 335a of the Czech Act). Further differences between the two regimes are summarised in the article on termination of employment in Czechia and Slovakia.

How we can help

We prepare the service plan together with the document, including the procedure where acceptance is refused and the record for any dispute. For notice, through termination by notice; for immediate termination, through immediate termination of employment. If you have employees in both Slovakia and Czechia and need a single procedure for both countries, start with termination of employment.