New dismissal rules
The fact there are new dismissal rules does not mean there has been a clean sweep of the system. On the contrary, much remains as it was. For instance, you still have to comply with the formal and content requirements for letters of dismissal, the notice period still starts on the Monday following the week in which the letter of dismissal is served (for manual workers) or on the first day of the month following that in which notice is served (for white-collar workers) and there has been no tinkering with the principles of arbitrary dismissal and abuse of law.
1 January 2012 = a turning point
From 1 January 2012, when you terminate an employment contract you will always have to look and see whether the agreed commencement of the employment contract was before or after that date in order to ascertain what rules apply. If the agreed contract commencement date is before 1 January 2012, then the "old" dismissal rules continue to apply.
If the agreed commencement of employment is on or after 1 January 2012, the new rules will apply.
The agreed date of commencement of the contract is decisive. The date of contract signature and the fact that the employment contract cannot be performed owing, say, to illness plays no role.
Example: the parties sign an employment contract on 1 December 2011, with work due to start on 15 December 2011. Because he is ill, the employee only starts work on 3 January 2012. The new dismissal rules do not apply to the contract.
What if you sign an employment contract under which work is to start after 1 January 2012 with an employee who was already employed before 1 January 2012? In that case, the old rules continue to apply if the employment contract follows on without a break or, if there is a break, this is not longer than 7 calendar days.
Example: the parties have a fixed-term employment contract covering the period from 1 March 2011 to 31 March 2012. They subsequently sign an open-ended contract under which work is to start on 3 April 2012: the interruption is less than 7 days and the effective date of the old contract was before 1 January 2012: the current rules apply.
Seniority as a temp can count towards calculation of the notice period
Under the new rules, notice periods are still calculated on the basis of seniority acquired at the time the notice period commences. In future, seniority acquired by the employee as a temp working for the employer will be taken into account under the following conditions:
notice of termination is served by the employer; the employee is hired immediately, or with an interruption of no more than 7 days following the period of temp work with the same employer/user; the employee is hired for an identical position to that he previously occupied as a temp; the period of temp working must be uninterrupted, whereby interim periods of up to 7 calendar days in which there is no work count as periods of employment. In any case, the total acquired seniority as a temp will only be counted for up to one year.
Example: an employee works under 10 successive temp contracts from Mondays to Fridays. He is hired immediately thereafter under an open-ended contract: the employee has an additional 10 weeks' seniority.
Example: an employee works under 10 successive temp contracts from Mondays to Fridays. Between the 5th and 6th contracts, there is a break of 1 week (including the weekends). If the employee is then hired under an open-ended contract, he will have an additional 5 weeks' seniority.
If you hire the temp for another position or if you wait more than a week to hire the temp permanently, his seniority as a temp will not count.
(A small) extension to the notice periods for manual workers and severance pay
Employment contracts with an agreed starting date before 1 January 2012
For current employment contracts, nothing changes: the notice periods to be observed are those under section 59 of the Employment Contracts Act or CBA no. 75.
Special severance payment
The special severance payment provision is new. The special severance payment is the successor to the crisis bonus, which comes to an end on 31 December 2011. In contrast to the crisis bonus, the entire charge of the special severance payment is borne by the National Employment Office...
Act Implementing The IPA: A First Approximation Between The Status Of Manual And White-Collar Workers
|Author:||Mr Pelin Ildeniz|
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