Nowadays, employers might hear horror stories about employees quitting and vanishing, leaving before the end of their notice period or not handing over their posts properly. What could an employer do in such situations?
Save for the case of extraordinary termination and termination during the trial period, the delivery of a notice of termination will not immediately terminate the employment relationship: it will cease to exist only upon expiry of the notice period. Consequently, both parties must act fairly and in good faith and fulfil their responsibilities arising from the employment during the notice period as well. The termination involves other obligations for the parties, such as the handover of the position by the leaving employee whereas the employer must provide for the circumstances of such handover.
During the employment relationship, employees must be available in working hours – and it is just the same during the notice period. Therefore, if the employee is not present at the place of employment without any pervious notice, this may be seen as a misconduct, and might give the right for a dismissal without notice. Not or not properly handing over the position could also be a misconduct and may also be a reason for dismissal without notice.
At a first reading, terminating an employment relationship without notice during an already started notice period might appear strange – but it is actually possible. The reason is that the parties are still in a legal relationship until the end of a notice period. But even under these circumstances, the dismissal without notice has to meet requirements listed in the Labour Code. According to Hungarian Labour Law, the dismissal has to be reasonable, based on real grounds and its communication has to be clear. If the employee takes a French leave, i.e. does not spend his/her notice period at the employer, then the termination is actually void. It is therefore important that the employer shall communicate a lawful termination.
What are the legal consequences of an unlawful termination by the employee? According to the Hungarian Labour Code, the absence fee calculated for the notice period (the default length is 30 days) may be claimed from the employee. If the parties had a fixed-term contract, then the amount calculated for the remaining part of the fixed-term, yet not more than for 3 months, may be claimed. It may occur though that the employee causes much more harm by his/her unlawful termination, e.g. if he/she vanishes just a week before an important project deadline, thereby frustrating the submission of the bid. In such cases, the employer may claim damages in excess of the above absence fee – up to 12 months of absence fee. Note that these sanctions are applicable also for the case when the termination by the employee is though lawful (i.e. he/she spends the notice period at work) but his/her position is not handed over properly or not at all.
Sometimes the employee wants to spend his/her notice period at work and this is exactly the problem because he/she just ‘pollutes’ the atmosphere. The Labour Code gives the opportunity to exempt employees from work duty for half of the notice period in case of termination by the employee. In case the termination is initiated by the employer, this is not an option but an obligation.
What happens when the employee has caused damage to the employer but it only turns out after the position is handed over? In this case, if the employee did not proceed with due care that is generally expected under the given circumstances, the employer must be indemnified. Note that the extent of damages and causation have to be proved by the employer. In case of negligence, the employee’s liability is limited up to the amount of 4 months of absence fee. However, if the employee causes damage intentionally or due to serious negligence, the employer shall be indemnified in full.
Stricter liability applies to positions involving handling of cash or other valuables. It is quite typical that employers ask for a guarantee from the employee in such sensitive positions. Such guarantee may be agreed upon only in writing and the amount of the guarantee may not exceed the employee’s one-month base wage. This money may only be used to repair damages caused by the employee and in case of the lack of employee’s content it may only be used in the possess of a final demand of pay or court order.