Sandra Kuus, lead counselling lawyer at the Labour Inspectorate responds:
Clause 88 (1) 3) of the Employment Contracts Act (ECA) as grounds for cancellation applies where the employee has in spite of a warning, disregarded the employer’s reasonable instructions or breached his or her duties.
The Labour Inspectorate is of the opinion that in a situation where the employer has performed a risk assessment, has taken all other possible measures to mitigate the risks, and has found that only an employee who is vaccinated can perform the job, extraordinary cancellation of an employment contract signed with an employee who has not been vaccinated may be lawful on the grounds laid down in clause 88 (1) 2) of the ECA.
Whether clause 2 or clause 3 is cited, the employee must be warned before the employment contract is cancelled.
Where an employment relationship is cancelled for reasons attributable to the employee, the employer is not required to pay compensation to the employee as is provided for, e.g., in the case of lay-off.
For the employee, it will be important whether the contract is being cancelled on the basis of clause 2 or clause 3. If the employment relationship is terminated on the basis of clause 88 (1) 2) of the ECA, the employee will be entitled to apply for unemployment insurance benefit, but if it is done on the basis of clause 88 (1) 3), this benefit cannot be applied for.
A final assessment of whether the cancellation of the employment contract is in accordance with the law, including with regard to the grounds for cancellation, can be made by a labour dispute resolution body (labour dispute committee or court).
In any case, an employee who has received a declaration of extraordinary cancellation from their employer may challenge the declaration by filing the relevant application with a labour dispute committee or an action with a court within 30 calendar days of receipt of the declaration of cancellation.
Should the labour dispute resolution body find that the employer has cancelled the employment contract unlawfully, the employee will be entitled to claim compensation in accordance with subsection 109 (1) of the ECA in an amount of up to three months’ average wages of the employee. The court or labour dispute committee may change the amount of the compensation, considering the circumstances of the cancellation of the employment contract and the interests of both parties.
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