Employer asks: our company employs a foreigner national from outside the European Union. Their residence permit is due to expire. How should their employment contract be terminated?
Vladimir Logatšev, lead counselling lawyer at the Labour Inspectorate responds:
Employers have a legal obligation to verify during the term of validity of the contract that the employee has a legal basis for employment in Estonia. If an employer allows a foreigner national who has no legal basis for employment to work in Estonia, the employer will be held liable.
If an employee has no legal basis for employment in Estonia, the employer may unilaterally terminate the employment relationship as the employee is not suitable for the position pursuant to clause 2 of subsection 1 of § 88 of the Employment Contracts Act. The employment contract may also be terminated by agreement between the parties under § 79 of the Employment Contracts Act.
The declaration of cancellation must be made in a form reproducible in writing and must include the names of the employee and the employer. A form reproducible in writing can, for example, be an email or message.
A declaration of cancellation of an employment contract under clause 2 of subsection 1 of § 88 of the Employment Contracts Act must include justification. In addition, the employer must adhere to the term for advance notice, which depends on the duration of the employment relationship of the employee. An employer may cancel an employment contract without adhering to the term for advance notice if, considering all circumstances and mutual interests, it cannot be reasonably demanded that the performance of the contract be continued until the expiry of the agreed term or term for advance notice.
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