Dismissing an employee for reasons attributable to the employee requires the issuance of a warning. The employer must ensure that the warning has been issued correctly and that grounds for dismissal exist before proceeding with the dismissal, in order to avoid potentially costly dismissal disputes.
Dismissal applies to employment contracts that are indefinite in duration. A fixed-term employment contract cannot be terminated unless specifically agreed upon in the employment contract. Grounds for dismissal of an employee can be divided into two categories: grounds related to the employee themselves, and grounds related to production and economic reasons. This article discusses dismissal grounds related to the employee. Our website has a separate article Termination of an employee on economic and production grounds.
Artisan Basis
A contract of employment may be terminated only for a justifiable and weighty reason. The following may be considered grounds under the law:
- a serious breach or neglect of obligations, arising from an employment contract or law, that substantially affects the employment relationship, as well as
- a substantial change in the employee's personal working conditions, as a result of which the employee is no longer able to cope with their job responsibilities.
When assessing the materiality and weight of a reason, the circumstances of both the employer and the employee must be taken into account as a whole.
A valid and serious ground for dismissal cannot be considered at least
- An employee's illness, disability or accident, unless their ability to work is significantly and long-term impaired by these to the extent that the employer cannot reasonably be expected to continue the contractual relationship;
- an employee's participation in a strike or other industrial action under the terms of a collective agreement or one implemented by a trade union;
- the employee's political, religious or other opinions or their participation in social or association activities;
- accessing the legal remedies available to an employee.
The Employment Contracts Act provides special protection for an employee who is pregnant or exercising their right to family leave, as well as for shop stewards and employee representatives. The protection afforded to conscripts during their period of military service is the same as that for an employee exercising their right to family leave. The Act on Occupational Safety and Health Representatives also grants them the same protection as shop stewards. Dismissal of these employees for personal reasons is only possible in exceptional circumstances.
Breach of employment obligation
When an employment contract is terminated for reasons related to the employee, it often concerns a failure to fulfil work obligations. The employee may repeatedly be late for work or take excessively long breaks during the working day. A failure to fulfil work duties also includes performing work contrary to given instructions or neglecting to carry out work tasks, even though there was time to do them.
If it is not a clear breach of the duty to work, but for example, continuous minor neglects of duties, poor quality of work performance, continuous errors or failure to achieve set targets, it is so-called employee underperformance. Our website has its own article. Employee underperformance and how an employer can address it.
Written warning
Before terminating an employment contract, the employee must be given a written warning for failure to fulfil their work duties and then given an opportunity to rectify their conduct. If the failure is considered a serious breach, a warning is not required before termination. However, this is rare. A warning should always be given in writing.
Issuance of a written warning with threat of dismissal. A warning must always be given before an employee can be dismissed and its purpose is to give the individual an opportunity to rectify their conduct. The warning must specify the objectionable conduct and the employee must be given a reasonable time and a real opportunity to rectify their conduct.
The warning must be given in writing and be verifiable to have significance in a potential employment dispute. Verifiable means that the employee acknowledges receipt of the warning with their signature. If the employee refuses to sign, the employer's representative and another person must sign to attest that the written warning has been issued to the employee. This other person can be a member of the company's management, a shop steward or another employee of the company.
If the procedure is repeated/continues after a warning has been issued, i.e. if the person does not correct their procedure, they may be dismissed, their employment contract may be terminated. In unclear cases, it is always advisable to discuss the situation with an expert.
Significant change in working conditions
A substantial change in an employee's working conditions can lead to the termination of their employment contract. An employee may lose a permit essential for their work, for example, a driving licence due to deteriorating eyesight, or they may fall ill for an extended period. When an illness is permanent, significantly reduces work capacity, or causes incapacity lasting over a year, the employment relationship can generally be terminated. However, the termination must be based on a thorough and expert medical assessment of the employee's ability to work.
IMPLEMENTATION OF MAINTENANCE
The grounds for dismissal must be invoked within a reasonable time after the grounds have become known. As a general rule, the employer must give the employee a warning before dismissal.
Before dismissal, the employer must consult with the employee and ascertain whether dismissal could be avoided by reassigning the employee to other work. The employee must be informed of the grounds for dismissal and given an opportunity to respond to them.
If the grounds for dismissal are so serious a breach of the employment relationship that the employer cannot reasonably be expected to continue the contractual relationship, there is no obligation to give a warning or explore possibilities for reassignment.
The notice period is generally determined by the employment contract, the collective agreement, the fixed-term provisions of the Employment Contracts Act, and the duration of the employee's employment.
The notice of termination must be given to the employee personally. The notice period begins to run from the day of notification. If personal notification is not possible, the notice may be sent electronically or by registered post. This notification is legally deemed to have been received on the seventh day after it was sent.
Unjustified termination of employment contract
If the employer terminates the employee's employment contract without the lawful grounds described above, the employer must pay the employee compensation for the unlawful termination of the employment contract. The amount of compensation is at least three (3) and at most 24 months' salary.
EMPLOYER'S CHECKLIST
- Termination generally only applies to fixed-term employment contracts.
- Remember to check the terms of the collective agreement
- Terminating an employment contract on the employee's personal grounds requires a valid and weighty reason, so the threshold for termination is quite high.
- Before dismissal, provide the employee with a written warning.
- In the case of unlawful dismissal, the employer must pay the employee compensation equivalent to 3-24 months' salary.
- In matters concerning separation, we recommend consulting a lawyer.
Jari Sotka
Lawyer, MBA
Tel. 040 544 0610
[email protected]
Amos Attorneys at Law Oy
www.amoslaki.fi
The author has worked as a lawyer and advocate for more than 25 years, focusing throughout his career on preventing and solving legal problems for small and medium-sized enterprises.