Immediate termination, or notice? The choice on a serious breach of work discipline

A shop manager discovers that an employee has been taking money from the till, or a warehouse worker turns up drunk and damages a forklift. The first impulse is to end the relationship “on the spot”. The Labour Code (Act No. 311/2001 Coll.), however, offers two routes where work discipline has been seriously breached: immediate termination under Section 68 and notice under Section 63(1)(e), which may also be given on grounds for which the employer could terminate immediately. Both rest on the same conduct, but they differ in cost and above all in what happens if the court later does not accept the grounds.

The common basis

An employer may terminate employment immediately exceptionally and only where the employee […] has seriously breached work discipline.

— Section 68(1) of the Labour Code (unofficial English translation)

The same time limits apply to both routes. The employer must act within two months of the day on which it learned of the grounds, and at the latest within one year of the day on which the grounds arose (Section 63(4) and Section 68(2)). If the employee’s conduct becomes, within that period, the subject of proceedings before another authority, for example the police, the limit is extended to two months from the moment the employer learns of the outcome (Section 63(5)).

The standard of judicial review is the same as well. Whether a breach is serious is assessed by the court by reference to the person of the employee, their conduct to date, the manner and intensity of the breach, the situation and the consequences for the employer; the court is not bound by the assessment in the workplace rules. In decision 2Cdo/284/2020 the Supreme Court of the Slovak Republic also recalled earlier case law under which an employer may terminate immediately only where the employee’s conduct is so serious that the employer cannot fairly be required to continue employing them. Both documents must be in writing, with the grounds defined in factual terms so that they cannot be confused with any other, and served; the grounds may not be changed afterwards (Section 61(1) and (2), Section 70).

How the routes differ

	Immediate termination	Notice
End of employment	on service of the document	on expiry of the notice period (Section 62)
Consultation with employee representatives (Section 74)	opinion within two working days	opinion within seven working days
Informing the employee of the grounds and an opportunity to respond	not expressly required by the Act	mandatory (Section 63(6))
Pregnant employee, parental leave, lone parent of a child under three	not possible (Section 68(3))	possible, except during maternity and paternity leave (Section 64(3)(b))
Employee on sick leave	possible	possible (Section 64(3)(b))
Retirement gratuity	employer not obliged (Section 76a(4))	under the ordinary conditions of Section 76a
Invalidity where the employee does not insist on continued employment	wage compensation for two months (Section 79(5))	employment ends on expiry of the notice period (Section 79(4))

Severance pay is not payable on notice given on these grounds; Section 76(1) ties it to organisational and health-related grounds. Even on immediate termination we recommend hearing the employee before deciding, although the Act does not expressly require it, because their explanation helps verify whether the conduct and the evidence will stand up.

Where the risk differs

If the court holds that the termination was invalid and the employee has told the employer that they insist on continued employment, employment subsists and the employer pays wage compensation from that notification (Section 79(1)). Here the two routes do not differ. The difference arises where the employee does not insist on returning. On invalid notice, employment is deemed to have ended by agreement on expiry of the notice period. On invalid immediate termination, employment ends on the day it was to have ended, but the employee is entitled, even where they do not wish to return to the business, to wage compensation in the amount of average earnings for a notice period of two months (Section 79(4) and (5)).

Notice is not, however, a rescue for weak grounds. If the breach does not reach a serious intensity and the employee has not been warned in writing in the last six months of the possibility of notice, notice will not stand either (Section 63(1)(e)). The procedure involving a warning is covered in our answer on notice for a breach of discipline.

How to decide

Immediate termination makes sense where the conduct is clear and can be proved at once (a recording, an admission, witnesses), its seriousness is obvious, and the employee’s presence during a notice period would be risky for the business, for example where they have access to money, data or clients. Notice is the wiser course where the intensity of the breach is borderline, the evidence is still being assembled, or the employee is protected under Section 68(3). In borderline cases an agreement to terminate should also be considered, as it avoids any dispute about intensity altogether.

The typical mistakes are the same in both cases: grounds described in a single general sentence, a missed time limit counted from the date the matter reached the HR department, and unproven service. Where there has been an unexcused absence, a medical certificate produced after the event is added to the list; that is covered in our answer on an employee who has not come to work and is not responding.

How we can help

We prepare the choice between the two routes, the document and the service plan through immediate termination of employment or termination by notice. If the employee is one with whom problems have been dragging on and you need to catch up on warnings and documentation first, start with problem employees. The general conditions for immediate termination are summarised in our answer on immediate termination by the employer.