An employee has challenged dismissal in court. What deadlines apply and what should we prepare?

Employers often view a dismissal invalidity claim as a dispute over whether the reason was “reasonable”. The court, however, examines whether every step required by the Labour Code (Act No. 311/2001 Coll.) was followed; most lost cases concern procedure rather than grounds.

A deadline the court monitors itself

Either the employee or the employer may challenge in court the invalidity of termination by notice, immediate termination, termination during probation or agreement no later than two months from the day employment was due to end.

— Section 77 of the Labour Code (unofficial English translation)

Time runs from expiry of the notice period, not service of notice; we explain the calculation in how long the notice period is. Once the deadline expires, the right is extinguished and the court takes account of this even without an employer’s objection (Section 36). The first defence step is therefore to compare the filing date with the termination date: a missed deadline decides the dispute regardless of the notice’s contents.

The quoted first sentence of Section 77 has an important qualification: a general extension of employment under Section 64(2) is disregarded when calculating this deadline. However, where employment is extended because of a protected period under Section 64(1)(a), particularly temporary incapacity for work, invalidity may be claimed within two months of the final day of that protection, but no later than six months after the date employment would have ended without the protected period. Before concluding that the deadline was missed, the grounds for and duration of the protection must therefore also be checked (full Section 77).

What the court examines

• Writing and service. Notice must be in writing and served or is invalid (Section 61(1)). It is served personally at work, at home or wherever the employee can be found, and only then by registered post with acknowledgement of receipt; refusal to accept it has the effects of service (Section 38).
• Factual specification of the grounds. The grounds must be specified so they cannot be confused with another reason and cannot subsequently be changed (Section 61(2)). The court assesses only what the notice says.
• Consultation with employee representatives. If a trade union or works council operates in the workplace, prior consultation is required or the notice is invalid (Section 74); if representatives do not respond within seven working days of the request, consultation is deemed to have taken place.
• Requirements for the particular ground. For redundancy, a written decision on organisational change; for most grounds, an offer of other suitable work (Section 63(2)); for misconduct, a written warning, two months from discovery and an opportunity to respond (Section 63(4) and (6)), discussed in when to dismiss for misconduct.
• Prohibition on notice. Notice given during a protected period under Section 64 is invalid regardless of the grounds, subject to the exceptions in Section 64(3).

What to prepare

Collect in one file the notice and proof of service (signature, receipt or witnessed record of refusal), consultation request and employee representatives’ position, organisational change decision dated before notice, offer of other work and the employee’s response, written warnings and interview records, the employment contract, workplace rules with proof the employee was acquainted with them, and payroll records for calculating average earnings. Contact witnesses before they leave the company.

Wage compensation risk and reduction

If the court declares the notice invalid and the employee has stated that they insist on continued employment, employment continues and compensation at average earnings is due from that statement until you allow them to work (Section 79(1)); an exception is a court decision that continued employment cannot fairly be required. Proceedings take time, so the law provides a cap and an opportunity for reduction:

If the total period for which wage compensation should be provided exceeds 12 months, the court may, at the employer’s request, reasonably reduce the obligation for the period exceeding 12 months or award no wage compensation for that excess period. Wage compensation may be awarded for no more than 36 months.

— Section 79(2) of the Labour Code (unofficial English translation)

Exception: Section 79(2) in its entirety, including the possibility of reduction and the 36-month cap, does not apply to a whistleblower reporting crime or other antisocial activity if employment ended while protection under separate legislation was being provided (Section 79(3)).

In other cases, the court will not reduce compensation on its own: a reasoned request is needed, for example based on the employee having worked elsewhere in the meantime. If the employee does not insist on continued employment, employment ended by agreement when the notice period expired (Section 79(4)), and no wage compensation is due. Immediate termination has stricter rules, discussed in immediate termination by the employer.

How we can help

We take over the defence through invalid termination of employment and employee disputes, including requests to reduce wage compensation and settlement negotiations. If notice is still being prepared, we review it in advance through termination of employment by notice: after service, it cannot be corrected.