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Employment Relationship During Military Service

1. How long in advance should the employer be notified that the employee will attend military service?

The Employment Contracts Act does not prescribe in which form or by which deadline should the employee notify the employer about the upcoming military service. Considering the good faith and mutual respect principle in the employment relationship, the employee should inform the employer about significant data at the first possibility. Thus, if the military service is certain, the employer must be informed.

Many employers have stipulated the principles concerning the employees’ departure to and arrival from military service in the work organization rules.

2. How must the employer be notified? (Orally, on paper, with evidence?)

To avoid later disputes, the employer should be notified in a written and reproducible form (e.g. by email), or by passing a corresponding written application. Check that the employer registers the application. Also, keep a copy of the sent email.

3. For what reasons is the employer allowed to end the employment contract during the military service? (Redundancy, agreement between parties?)

According to Employment Contracts Act §92 s 1 ss 6, the employer cannot terminate the employment contract on the reason that the employee is in military service or in alternative non-combatant service. However, terminating the contract on other grounds is not forbidden.

The employer must have legal grounds for terminating the employment contract. According to the Employment Contracts Act, the employer can extraordinarily cancel the employment contract either for reasons related to the employee (ECA §88) or the employer’s financial situation or redundancy (ECA §89).

If the employee’s work is lost during the military service, the employer has a right to extraordinarily cancel the employment contract. The contract can be cancelled in a written reproducible form with a cancellation notice. This means that the employee can send an email or SMS to the employee about the contract cancellation, but must also certainly explain the extraordinary cancellation.

Employment contract cancellation on mutual agreement is always possible, but both parties must clearly and unambiguously express their will. It must be the actual will of both parties.

4. Employee is in military service but does not wish to return to the old employer. Is the employee obliged to return to the same employer? Should the employee hand in their resignation and can this be made during the military service or should one wait until the end of the military service and then work 30 days for the employer?

Even though the military service has as if halted the employment relationship, the employee still has a valid employment contract until one party cancels the relationship or parties end the employment relationship on mutual agreement.

Employee has the right to cancel the unlimited employment contract at any time (ECA §85 s 1), notifying the employer at least 30 calendar days in advance (ECA §98 s 1). Military service is no obstacle for the cancellation notice, therefore, the employee can hand in their resignation also while in military service. It is important that the employee adheres to the notification deadline (30 calendar days).

5. As the employment contract does not end but halts during the military service, then does the employer have a right to demand or ask the employee in military service to fulfil their contractual obligations?

An employer’s obligation always corresponds to the employee’s legal right. As ECA §19 s 5 states that the employee is entitled to refuse from working while in military service, military non-combatant service or reservist training, the employer cannot demand or ask working during this period.

6.  May the recruit continue working during the military service?

During the military service, the person is in service of the Defence Forces, executing the state defence obligation which does not enable to continue the employment relationship in parallel. So, may not.

7. Even though the vacation days are not calculated when the employment contract has been halted during the military service, then what happens to the length of employment?

The employment relationship lasts until the employment contract is terminated, including the time spent in military service. It is important for calculating the employment contract cancellation notice deadlines.

For example, if an employee was employed in January 2007, attended military service in 2010 and now, in 2012, the employer wants to let them go, it must be considered that the employment relationship has lasted for 5 years and must thus inform the employee at least 60 calendar days in advance about the extraordinary cancellation.

8. What happens to a fixed-term employment contract or contract for services during the military service?

A fixed-term employment contract ends with the arrival of the term. If the deadline is reached during the military service, the employment contract ends and the employee cannot demand any more work from the employer after returning.

The employer must not notify the employee about the arrival of the term. However, the employer must issue a certificate to the employee for presenting to the Estonian Unemployment Insurance Fund, should the employee want to list themselves as unemployed after the end of the military service.

The duration of a contract for specific services depends on the fulfilment deadline agreed in the contract. Also the contract for services cannot be executed during the military leave. If the term of this contract arrives during the military leave, there is no obligation to continue it after the leave. But if the contract is still active, it must be executed after returning from the military service.

9. Does a company owner have any legal grounds to apply for a possibility to engage in company-related matters during the military leave?

No such possibility emanates from law.

10. How long should one return to work after the end of the military leave?

The right to refuse from working applied only during the military service – thus, at the first possibility after the end of the recruitment.

11. What to do when the employer refuses to halt the employment contract and forces to write a resignation notice?

The employer cannot refuse to halt the employment contract. After the employee has informed the employer via email or with a written notice on paper that they must attend military service, they are already using the right to refuse from working – the employee does not go to work but goes into military service instead.

The employer cannot demand the so-called resignation notice or the employment contract’s ordinary cancellation notice. The ordinary cancellation of the contract can only occur at the employee’s free will, meaning that the employee themselves must have the desire to end the employment contract. If the employer does not actually have such a wish, the resignation notice may not be written.

12. What to do when the employer refuses to take the employee back after the military service?

The employer can only refuse to execute the employment contract after the contract has ended. But as already said, the contract termination must have legal grounds. Until the employee has been given an extraordinary cancellation notice, they have a right to demand the execution of the contract and the possibility to work.

The employee should certainly ask the employer to explain, both orally and in writing, why they are not provided work, and to clearly express their will to continue working by going to the workplace or the employer’s legal representative at the beginning of the shift. If the employer notifies orally over the phone or when meeting the employee that they are no longer needed and that there is no longer a point in returning, the employee should not be dismayed. The employer should certainly be sent an email or registered mail to get an explanation. The employee must keep evidence that they have done everything in their power to express their will to continue working.

Answers to the questions are by Meeli Miidla-Vanatalu, the head of the labour relations’ department of the Labour Inspectorate

 

Also have a look at information about entering the military service at the website of Defence Resources Agency.

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Last update: 06.05.2016

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