Rescission of Unlawful dismissal

In every national legislation, there are legal rules that protect employees from unlawful dismissal. Every employee in case of unlawful dismissal has the opportunity to approach both the Labour Inspectorate and the court and to seek the rights guaranteed by law. Therefore, the employer should carefully act and draft the necessary documents for protecting its interests in case of dispute. 

Which dismissal is illegal

A dismissal shall be considered unlawful if any of the following offenses is found:

  • dismissal without any legal basis;
  • termination of the employment contract by mutual consent in the absence of such;
  • violation of the rules on preliminary protection in the event of dismissal or other requirements.

Prior protection in the event of dismissal

Art. 333 of the Labour Code (LC) regulates the protection in case of dismissal of workers and employees upon termination of employment.

It applies only to certain categories of employees where the ground for dismissal is any of the following:

  • closure of part of the enterprise;
  • layoffs of job positions;
  • reduction in the volume of work;
  • lack of qualities of the employee for the effective performance of work;
  • change of the requirements for the performance of the position, if the worker or employee does not meet them;
  • disciplinary dismissal.

Most often protection is enjoyed by mothers of children up to 3 years of age, workers with permanently reduced working capacity or suffering from diseases specified in an ordinance of the Minister of Health.

Rights of the employee to appeal

The employer should deliver the termination order to the employee. If the employee refuses to sign for the receipt of the order, service may be certified by the signatures of two witnesses. The employee is entitled to file a claim for unlawful dismissal within two months upon receipt of the termination order.

The law provides the dismissed person with the opportunity to defend himself by asking to establish the illegality of the dismissal and to annul both the act and its consequences as illegal.

Possible claims for protection from unfair dismissal are as follows:

  • Action for recognition of dismissal as unlawful and its annulment
  • Action for reinstatement of previous work;
  • Claim for compensation for the time during which the person has remained unemployed, but not for more than 6 months;
  • Action for correction of the ground for dismissal entered in the employee's employment book and other documents.

What can the employee get when winning the case?

The recognition of the dismissal as unlawful and its annulment entails the following consequences if the relevant action has been brought:

  • Possibility of occupying the previous job within two weeks from the date on which the worker received the notice from the court of the final decision. In case of missing this term, the employment relationship is terminated permanently;
  • Right to compensation of not more than 6 wages for the time during which the employee was unemployed;
  • Correction of the registered grounds for dismissal in the employment book and all other documents;
  • the period during which the employee was unemployed because of the unlawful dismissal will be considered as length of service.

This article has been prepared for the purposes of general information only and does not constitute legal advice with respect to any particular subject or situation. For specific legal advice you should contact an attorney-at-law. Stoeva, Tchompalov & Znepolski is not responsible for any legal action undertaken on the basis of the information contained herein.