LAWFUL DISMISSAL IN HUNGARY - PART II. TERMIANTION BASED ON BEHAVIOUR

13 November 2019

Although, considering the current labour market in Hungary, employers are trying to keep the employees at the company, there may be situations where the employment relation cannot be maintained due to behaviour or attitude. In our previous article we explained that a dismissal by the employer is far from a simple move, as the legitimate justification must meet a number of criteria. In the present article, we examine the grounds for termination based on the behaviour of the employee.

The first part of the article is available here: http://smartlegal.hu/publication/lawful-termination-of-employment-in-hungary-part-one-how-to-justify-a-dismissal

 

Reasons in connection with the employee

The Labor Code[1] does not list specific grounds for termination, provides only that “an employee may be dismissed for reasons in connection with his/her behaviour in relation to the employment relationship, or with his/her ability.”

Of course, the laconic provision does not mean that there are no further rules, the specific reasons for termination can be determined by analyzing the extensive judicial practice.

This article will address behavioural causes, while we will analyse the causes based on abilities in our next article. Reasons for termination based on employee behaviour can be divided into the following categories:

• Violation of general rules of behaviour
• Breach of work duties and responsibilities
• Inadequate performance
• Loss of trust

1. Violation of general rules of behaviour

In the following cases, the employee's expertise may be impeccable, but his or her behaviour and conducts may be incompatible with a cultured work environment that may serve as a basis for termination.

a. Breach of obligation to cooperate

The employee must cooperate with his / her colleagues, which is a necessary for efficient work. It is a violation of this requirement if the employee communicates with their colleagues in an intolerable tone[2] or uses unacceptable expressions in a hassle.[3] It is also valid ground for termination if the employee sexually harasses a colleague or violates their human dignity.[4]

b. misbehaviour towards third parties

It is a legitimate reason for termination if the employee behaves in an inappropriate manner towards third parties (customers, customers, etc.) in the course of his work.[5] According to the practice, it is valid a ground for termination if the shopkeeper is impolite towards the customers or the carer calls the elderly people in a disrespectful manner.[6]

c. inappropriate behaviour outside working hours

It is a misconception that the employer has nothing to do with the employee's life outside work. According to the Labour Code, Employees may not engage in any conduct outside their paid working hours that directly and factually has the potential to damage the employer’s reputation or legitimate economic interest.”[7] So if an employee discredits the company accompanied by various insults during a Friday pub night, that can easily costs him his job.

2. Breach of work duties and responsibilities

a. Inadequate work quality, being late

Inadequate work can be caused either by the employee’s behaviour and the lack of skills. It is a behavioural problem if the employee is constantly late from work or they do not take reasonable care because of their negative attitude (eg.: doing other things during working hours) and that leads to inaccurate, inattentive work.

In most cases, imputability is not a necessary element, thus the employee can not blame bad traffic to explain away being late several times. However, in some cases (eg.: missed deadline), it must be examined whether the task could have been performed under the specific objective circumstances.

It shall also be examined, how long delay, what degree of inaccuracy may justify a termination. According to court practice, a breach of duty by an employee, in particular if its weight is negligible and does not adversely affect the employer, does not in itself constitute a valid ground for termination.(one-off delay, some inaccuracies)[8]

In contrast, the court found the termination justified when the employee was dismissed for breach of the employer's Code of Ethics.[9]

b. Refusal of orders

The employee may only refuse the employer's instructions in the cases listed in the Labor Code (eg.: instruction contrary to rules, protection the lives of others). According to domestic practice, if an employee refuses an instruction without a legitimate reason, it may serve as a basis for termination.

c. Infringing the employer’s legitimate economic interest

This category relates to the protection of the employer's business secrets and non-competition. It may serve as the basis of termination if an employee shares his experience gathered during work on his private blog,[10] which can endanger or damage the employer's economic interests.

3. Inadequate performance

Under the term “inadequate performance” we mean the lack of the expected results that can measured by figures or indicators, that may also be caused by the employee's inappropriate behaviour (attitude). [11]

This reason is controversial in jurisprudence and, on the basis of recent decisions, the failure to deliver the expected results in itself does not constitute a legitimate ground for termination.[12] According to a decision of the Supreme Court, justification based on inadequate performance may only be lawful if it is proven that it was caused by the employee's ability or behaviour.

In another decision, the court found that termination based on the lack of expected results may not be lawful if there was no prior complaint regarding the quality of the employee’s work over a longer period.

In practice, therefore, the lawfulness of a termination based on inadequate performance is often questionable, as the expectations can be subjective, at the same time, the lack of results can be caused by various reasons beyond the employee’s control.

Due to the above, it is worth examining the employee’s work output, since the inadequate performance can be caused by low quality work (defective, inaccurate work, doing other things during working time), which, indeed can be a valid ground for termination.

4. Loss of trust

Dismissal may also be justified by loss of trust, especially in managerial or other confidential positions. It is important to emphasize that reference to the loss of trust is not sufficient in itself, the cause must be supported by facts and the cause or circumstance must be of such gravity that the employment relationship can no longer be maintained.[13]

Conclusion

In this section, we explained the reasons for termination due to employee behaviour. It can be concluded that the employment can be terminated in various cases due to violation of the rules of conduct and inappropriate attitude. However, the justification shall always be supported by specific facts that are serious enough for the termination.