Although there is currently a ban on dismissals under coronavirus measures, many experts predict that when this ban is lifted, many employers will terminate employees. For that reason, workers should pay close attention to their rights during the dismissal process.
What to Watch for in a Dismissal
Under the relevant labor law, employers must notify the other party before terminating open-ended employment contracts. This notice period is commonly called the warning period or notice period. Except for certain exceptions, employment contracts are generally open-ended. The length of the notice period is determined primarily by the worker’s length of service at the workplace. Accordingly, the minimum notice periods are: two weeks for employees with less than six months of service; four weeks for those with six months to one and a half years; six weeks for those with one and a half to three years; and eight weeks for employees with more than three years of service. These are minimum periods and may be extended with the employer’s agreement, but they cannot be reduced below these limits.
An important point about the notice period is that it is reciprocal: it applies to both the employee and the employer. Parties who fail to comply with the notice period must pay compensation related to that period. This compensation is referred to as a severance-for-notice payment. The employer may instead pay the wages due for the notice period in advance and terminate the employment immediately.
Does Not Prevent a Reinstatement Lawsuit
An employer’s failure to observe the notice period, or termination by paying the notice period in advance, does not remove the employee’s right to job security protection under labor law. Job security rules apply where at least 30 employees work and where an employee with more than six months’ service cannot be dismissed without a valid reason; if such a dismissal occurs, a court may order reinstatement.
If a workplace has fewer than 30 employees, it must be shown that the employer abused the right to dismiss; if such abuse is proven, the employee is entitled to both the notice compensation and an additional amount equal to three times that compensation. When calculating notice compensation or the wages payable in advance for the notice period, in addition to the gross wage, monetary benefits or benefits that can be measured in money provided to the employee must also be taken into account. Annual payments such as transportation, meal, fuel, or clothing allowances are summed, divided by 365, and the resulting daily amount is added to the gross wage to determine the payable amount for each day. After calculating the gross amount, deductions for social security contributions and taxes are applied, and the net remainder is paid to the employee.
Two Hours Daily Job Search Leave
One of the most important rights for employees who have been notified of termination or who intend to resign is the job search leave. During the notice period following notification of termination, the employer must allow the employee at least two hours per day to search for a new job. These hours cannot be restricted or canceled, and the employer does not check whether the employee actually finds a new position. If the employee requests, these job search hours can be combined and used as a block. However, an employee choosing to use job search leave in a consolidated form must align it with the days they will be leaving work and inform the employer of this decision. For example, an employee with an eight-week notice period may choose to save the daily two hours and use them as full days off during the final two weeks of the notice period instead of taking two hours each day.