Termination due to employee misconduct is a type of regular termination as prescribed in Article 115 of the Labor Act.
It can be issued to an employee if the employer has a valid reason, such as when the employee violates their obligations under the employment relationship, or when the employee fails to follow the employer’s instructions, as the employee is obligated to personally perform the work they have undertaken according to the employer’s instructions, given in accordance with the nature and type of work.
The Labor Act does not explicitly define what constitutes a breach of obligations under the employment relationship but specifies which employee behaviors do not constitute valid grounds for termination.
For example, temporary absence from work due to illness or injury is not a justified reason for termination. However, for an employment contract to be terminated due to employee misconduct, three conditions must be met:
- the obligations in question must arise from the employment relationship,
- the obligations must have been violated solely by the employee,
- the employee must have intentionally violated the obligations.
The reasons for such termination can vary but must always involve misconduct related to serious breaches of work obligations.
Examples include frequent unexcused absences from work, failure to comply with workplace discipline, not fulfilling work tasks as outlined in the employment contract, inappropriate behavior toward colleagues or superiors, frequent tardiness and leaving work early, violations of safety regulations that endanger health and safety in the workplace etc. In the event of a dispute, the burden of proof that the reason for termination is justified lies with the employer.
Procedure before and after termination
Before terminating an employment contract due to employee misconduct, the employer is required to issue a written warning to the employee, informing them of the obligation they are violating and warn them of the possibility of termination if the violation continues.
Additionally, the employer must give the employee an opportunity to present their defense, unless there are circumstances that make it unreasonable to expect the employer to do so.
If the employee continues to breach their work obligations and the employment contract is subsequently terminated, the decision must be delivered to the employee in writing and must include a clear explanation of the reasons for the termination.
After the termination notice is issued, the notice period begins, but in cases of termination due to employee misconduct, the notice period is calculated as half of the length of the notice periods established by the Labor Act.
It is important to note that if an employee’s contract is terminated due to their misconduct, they will not be entitled to severance pay, unlike in other types of regular termination of employment contracts.