A trade union’s lawyer, Gita Oškāja, was repeatedly approached by union members who signed an agreement to terminate labor relations or change the labor contract, and, unfortunately, only then looked for answers to the questions that arose from a lawyer about the consequences of their signature.
It should be remembered that before voluntarily (or voluntarily-compulsorily) signing any documents (agreements, amendments to the employment contract, etc.), the employee has the right to demand a reasonable period of time to consult a lawyer and the employer cannot refuse such a period. The Labor Law does not specify the length of the period, but in practice at least 3–5 working days is considered a reasonable period for an employee to make a decision that could materially affect his/her future in the long term.
In addition, it is necessary to separate two cases:
- when the employee confirms his consent to the content of the document by his signature, i. e. the employee signs the document in the place provided for this, and
- when an employee only certifies with his signature that he has received a document.
If there are doubts about the consequences of signing the document, DO NOT SIGN the document in the place provided for signature, but in any corner of the document write “Received, date, name, surname, signature” and seek the help of a lawyer!
A very significant difference between the termination of the employment relationship by agreement between the employer and the employee (Art. 114) and the termination of the contract at the initiative of the employer (Art. 101) is that the employee can relatively easily challenge the employer’s application when filing a claim in court, but challenge mutual agreement will be very difficult. You can even say that when signing an agreement NO RETURNING WAY!
If the employee brings a claim to the court in accordance with which the termination of the contract is contested, the court will carefully assess whether the employer has complied with the order and procedures established by the labor law, whether there are necessary base and documents, i. e. whether the employer has fulfilled all his obligations under the law upon termination of the employment contract.
BUT in relation to the agreement, the labor law does not provide for any special procedures, order and obligations of the employer! The Supreme Court at one time recognized that the agreement is an independent transaction, which is regulated by the Civil Law, and not the Labor Law, therefore it will be difficult for the employee subsequently to prove that the employee signed the agreement based on delusions or under the influence of coercion.
In addition, the labor law does not provide an obligation for the employer to pay severance pay if an agreement is signed. At the same time, if an agreement is voluntarily reached between the parties on the termination of labor relations, then it is necessary to ensure that the agreement provides for specific clauses both on the payment of severance pay and on maintaining the insurance policy, maintaining the phone number, etc.
It is also important to pay attention to the fact that the employee is not obliged to independently prepare and sign the employee’s application (Art. 100, of his own free will) if the employee does not have a free desire to terminate the employment relationship. Upon termination of the employment relationship of its own free will, the employer is not obliged to pay severance pay!
If the employer points out violations, then he himself is obliged to prove that the employee acted unlawfully. If the employee has indeed committed a violation and the employer is able to prove it, the employer has the right to terminate the employment contract on the basis of any of the cases of violations referred to in paragraphs 1–5 of Article 101 of the Labor Law.
In turn, if the employee believes that the termination of the employment contract is not justified, the employee shall be entitled to bring a claim to court within 1 month from the date of receipt of the notice of termination (not from the date of termination, i. e. the last working day).
With regard to changing the employment contract, it is worth recalling that the employment contract can be changed:
1) By voluntary agreement (Art. 97 of the Labor Law): A voluntary agreement means that both parties voluntarily agree on changes to the employment contract. That is, regardless of who was the initiator, the other side fully agrees with the consciousness of the consequences (for example, another position, another job, a lower salary, etc.). An employer cannot force an employee to sign the changes and cannot fire them just because the employee does not sign the changes.
By voluntarily agreeing on changes in the employment contract, the document, which is usually called “changes in the employment contract” or
At the same time, it should be reminded that taking into account the reasons, the parties may come to an agreement on the period of validity of the introduced changes, for example, by one year.
2) Based on the employer’s initiative in connection with the proposed amendments (Article 98 of the Labor Law):
Article 98 of the Labor Act stipulates that the employer, in accordance with the provisions of Article 101, paragraph 1, has the right to notify the employer in writing in advance no later than one month in advance of the termination of the employment contract, provided that the employment relationship will be terminated if the employee does not agree to continue in accordance with the changes proposed by the employer in the employment contract.
Changes should be proposed on grounds that are related to the behavior of the employee, his abilities or the implementation of economic, organizational, technological, etc. activities at the enterprise (for example, reducing the volume of cargo, reducing the volume of work, changes in the list of states, redistribution of duties/optimization, etc.), as a result of which the employer decided to terminate employment contracts, provided that if the employee does not agree with the changes, the employment relationship will be terminated.
When provided in the Article 98 and the first part of the Article 101, primary and main event is the presentation of NOTICE ON THE RESTORATION OF THE CONTRACT OF EMPLOYMENT to the employee. Entry into force of such termination is limited by a condition, the occurrence of which depends only on whether the employee agrees or disagrees with the employer’s proposal to change the employment contract (at least significant amendments to the provisions of the employment contract should be specified or a new version may be attached).
In case of termination of an employment contract on the basis of the first part of Art. 98 and the first part of Art. 101 of the Labor Law, all related rules shall apply, for example, Art. 102, Art. 108 (in case of staff reduction), Art. 110, etc., mentioned in the first part of Art. 101 of this Law. In other words, the employer has a number of responsibilities that he must fulfill.
In the event of termination of the employment contract on the basis of paragraph one of Article 98 and Article 101 of the Employment Contract Law, the termination of the employment contract is specified:
Upon receipt of the relevant termination of the employment contract, the employee has the right to think over his actions during the entire termination period (at least one month) and at least on the last day of the term to inform the employer of his decision, i.e. ~ i.e. agree or disagree to continue the employment relationship in accordance with the employer’s proposal.
If the employee agrees with the employer’s proposal, the termination of the employment contract does not enter into force and the employment relationship continues in accordance with the amendments to the employment contract proposed by the employer.
Since the primary event is the notice of termination of employment, the employee has the right to challenge it, if he considers it unreasonable, by filing an appropriate claim in court within one month from the date of receipt of the notice. At the same time, upon receipt of the employer’s notification, the employee’s consent is not essential. The employer’s notice is a sole expression of will and the employee’s signature on it is only required to prove that the employee received it.
3) When changing the employment contract in accordance with Art. 99 of the Labor Law, the employer is obliged to eliminate any risk that may adversely affect pregnant women and women in the postpartum period up to one year, throughout the entire period of breastfeeding, safety and health.
In connection with the above, BEFORE SIGNING ANY DOCUMENTS, you are recommended to come for a consultation or call the trade union lawyer Gita Oškāja (tel. 67234419, 28231051) or write an e-mail to [email protected].
Please arrange a consultation in advance.
If the employee does not agree with the employer’s proposal, the termination of the employment contract takes effect and the employment relationship is terminated.
