The agreement on the recall from a job position with a senior employee can be concluded also with other senior employees than those explicitly mentioned in the Labour Code

The agreement on the recall from a job position with a senior employee can be concluded also with other senior employees than those explicitly mentioned in the Labour Code

(Judgement of the Supreme Court of the CR, No. 21 Cdo 1073/2017 from 10 May 2018)

On 21 November 2014, the plaintiff was recalled from a job position “Senior Control Manager, Business Manager”. On the same day, the defendant sent him also the notice of termination on the ground of the unavailability of any different job appropriate to plaintiff’s health condition and his professional qualification. The plaintiff has filed a suit to declare the recall and termination notice invalid.

The Court of First Instance held that the termination notice was invalid. The Court explained that the defendant had intended to announce an available job position of business manager for Ostrava region at the time of giving termination notice to the plaintiff. The defendant published the advertisement on 3 December 2014. In the Court’s view, there was an available job position, but the defendant did not offer it to the plaintiff.

The Court of Appeal dismissed this decision because of the lack of evidence. The Court held that it was not possible to consider the above-mentioned advertisement as the only proof for the availability of a job. Further, the recall from the senior employee position was valid, because the provision of Sec. 73 of the Labour Code allowing to recall the senior employee from the positions over which direct (immediate) control is exercised by the statutory body, the employer, or the member of the (top) management, was found dispositive. The parties can thus agree otherwise. The plaintiff filed an extraordinary appeal to the Supreme Court, because this question constitutes the so far unresolved legal issue in the courts’ practice.

The Supreme Court dismissed this extraordinary appeal.

The Supreme Court declared that the plaintiff’s position of “Senior Control Manager, Business Manager” corresponds with the legal definition of senior employee. In compliance with this presumption, the recall agreement concluded between the parties was valid. The Supreme Court admitted that the provision of Sec. 73 of the Labour Code was dispositive and the parties could agree otherwise in extensive manner. However, the purpose of the senior employee should be always respected. The senior employee is authorized to determine and give tasks to subordinate employees, to organize, manage and supervise their work and to give them binding instructions (orders) for this purpose (Sec. 11 of the Labour Code). The Supreme Court held that the recall of the plaintiff is valid, because the recall agreement in the labour contract is valid as well.