29.05.2024
HOW TO PROTECT OURSELVES IN CASE OF UNLAWFUL RELEASE FROM WORK
No worker is insured by an incorrect employer. In the world of employment, subordinates are the more vulnerable country. There are no cases where the boss decides to release his subordinate without reason and even without notice. In some cases, the employer does not even serve an order for termination of employment and does not return the employment record.
Fortunately, workers are becoming more and more aware of their rights and prove to employers that uncontrolled power harms themselves and their business. The legislation provides for a number of rules and rules that protect employees from unfounded and sudden dismissals.
If this happens to you, know that you have the opportunity to refer to the Labor Inspectorate and/or the Court to protect your legally guaranteed rights. The complaints of the Labor Inspectorate are intended to control and sanctioned the employer. The actions carried out through the court are aimed at protecting and realizing the rights of employees themselves, injured by unlawful actions of employers.
Grounds for termination of employment
The employer has the right to terminate the employee's legal relationship only on legally established grounds and in accordance with certain procedures. The reason for dismissing a specific subordinate, which is regulated by law, must be in accordance with the factual circumstances.
The termination of an employment relationship is by an order of the employer, which is in accordance with all the requirements of the law. The order should be issued by a competent authority and in the form prescribed by law. Otherwise, the dismissal is considered insignificant.
The relationship itself shall be terminated from the moment the order is served on the employee. If he does not want to receive it, this circumstance is certified by the signatures of witnesses. Without the order, the legal relationship continues to exist and if the employer does not allow the subordinates to the job, he should pay him compensation on the grounds of Art. 213, para. 1 of the Labor Code.
When a notice is provided for the specific type of termination of a legal relationship, it must be respected. The employer has the right to terminate the legal relationship before the expiration of the notice, but is obliged to pay compensation for the not complied with the notice period.
For some categories of employees (employment, mothers with children, persons on leave, etc.), enhanced protection for dismissal, regulated in Art. 333 of the Labor Code. In these cases, in order to carry out the dismissal, a preliminary permission of the Labor Inspectorate is required. Some subordinates categories require the prior consent of a trade union body. Ie Prior to the issuance of the order, the employer must verify that the worker/employee concerned is not a person who enjoys such protection.
When the dismissal is disciplinary, the employee must be requested written explanations before the issuance of the dismissal order. If the termination of the contract is due to the redundancy of the state, the employer is obliged to make selection (Article 329 of the Labor Code) among all workers holding the same or similar position and then to issue an order for termination.
The employer may not force the employee to terminate the legal relationship on his initiative. He may propose the termination of the contract, paying four gross wages, but the termination is set depending on the consent of the worker (Article 331 of the Labor Code). In this option, the termination is at the initiative of the employer, but it is not unilateral. In addition, if the agreed compensation is not paid within one month after the termination of the contract, the grounds for termination are automatically eliminated.
Challenge
You have a legal right to challenge the dismissal to the employer himself in writing. He can cancel himself the dismissal until a claim in court - then the issue is necessarily resolved by the court. But in the judicial phase, the employer may recognize the claim and the proceedings to complete. However, challenging the dismissal to the employer is rarely applied in practice, since it is a relatively ineffective way to the court order.
In case of unlawful termination of the legal relationship, the employee has the right to request the court to be recognized as illegal and to be overturned. The challenge of any unlawful dismissal is by filing a claim against the employer in the district court at its registered office/address.
The claim can also be brought in the place where the worker/employee is usually working. The application should be filed within two months of service of the dismissal order (Article 358 of the Labor Code). It should be borne in mind that this period is limitation - ie. The court does not ex officio monitor whether the term is respected, but will only be activated if there is an objection from the other party.
The law has provided four claims for the protection of the employee in case of unlawful dismissal, regardless of the reason for the dismissal. They are regulated in Art. 344, para. 1 of the Labor Code. These claims may be joined and if claimed and aims to achieve the result on each of them, the relevant claim explicitly brought in the application. The goals of the claims are:
- recognition of the dismissal as illegal and its cancellation;
- restoration of previous work;
- compensation for the time during which the person is out of work due to dismissal;
- Amendment to the ground of dismissal entered in the employment record or in other documents.
Report to Labor Inspectorate
To protect your rights, you must report to the Labor Inspectorate. It is also good to present a copy of your employment contract. The alert should contain your name and address, the nature of the signal, date and signature. Electronically, the alerts are equated to written ones. If you have an electronic signature, you can send your signal via an electronic form.
A check shall be carried out within 15 days and a letter of response is sent. During these 15 days, if you know the address of the company's headquarters, you can send a registered letter with a return receipt, in which you will request all the documents related to your employment relationship and explicitly indicate that you want to receive them by mail.
If you have not received anything after the 15-day period, you should contact a lawyer to whom to submit a copy of the complaint to the Labor Inspectorate and a copy of your letter to the employer. In this way you will be able to file a case of incorrectness to the employer and request everything due to you to be paid, including compensation under Art. 224 of the Labor Code for unused paid annual leave and salaries due plus court and lawyer's expenses.
Labor cases against an employer are free of charge for the plaintiffs (employees) - they are exempt from the payment of state fees. This payment was transferred to the employer if it is indeed established that the dispute that was filed by the plaintiff was triggered by the employer. Or the employer has issued an unlawful order under which the labor case was instituted.
When further expertise is required regarding the conduct of the cases, the employees are exempted from these fees. But only if the claim is upheld by the court. The plaintiff only pays the lawyer's fee, and during the case he has the right to ask him to be reinstated.
Labor cases are rapid proceedings, that is, the court is obliged to order its decision within a specified time. Usually the term is one -month, but it can be extended if there are changes in circumstances. If the plaintiff dies in the process, the production may be continued by the heirs.
Do not leave “by mutual consent”
The employer may try to force you to sign an order to terminate the employment relationship by mutual agreement - do not agree! This will lose the right of your benefits. Instead of signature, write, "I disagree."
In the event that you are offered to leave under Art. 325, para. 1 of the Labor Code (by mutual agreement), you have the right to refuse. If the employer threatens you with disciplinary dismissal, consult a lawyer as it is very likely that there will be not enough grounds or they will be dropped to court. Do not manipulate yourself and fight for your rights.
If you withstand these "attacks", the employer may try to release you under Art. 331 of the Labor Code, which guarantees you at least four gross salaries as compensation. You may require more - there is no limit. The termination on the grounds of Art. 331 of the Labor Code remains a preferred release from the employer and the worker. Here's what you need to know about it:
- Art. 331. (1) The employer may offer at his own initiative to the employee/employee termination of the employment contract against compensation. If the subordinate does not rule in writing on the proposal within 7 days, it is considered that it is not accepted;
- (2) If the employee/the employee accepts the proposal under para. 1, the employer owes him a compensation of not less than the four-fold amount of the last monthly gross wage, unless the parties have agreed to a larger amount of compensation;
- (3) If the compensation under para. 2 is not paid within one month from the date of termination of the employment contract, the grounds for termination shall be considered to be dropped.
Counter harassment at work
There are no cases where an employer tries to get his employee to leave through indirect psychological pressure, such as conducted poor treatment by a manager or colleague. In this situation, it is important to maintain your composure and act wisely.
In the event that someone submits false information about your work, they should serve you a report or punishment if there is a violation. In this situation, you must answer in writing and be sure to enter the answer. It is important to keep all the evidence (such as email correspondence) that are in your favor.
If you are a victim of mental harassment, file a complaint about mental harassment at the workplace to the employer with an incoming number. Describe in detail which person is exercising and what this harassment is expressed and ask for assistance in his termination. This complaint will also serve you as evidence if you may be dismissed or missed.
Given that you come to court and the court decision is to return you to work, you are probably worried about a bad attitude on the part of the employer. At this point, many people succumb to pressure and forcibly "agree" to leave. You have the right to take the case to the court again and to prove the bad attitude through witnesses.
In any case, if it comes to release or even simply a warning, consult a labor law lawyer. Consultation costs are nothing compared to the potential losses you may suffer.
Read carefully everything you give you to sign, and if you are actually terminated your employment contract, you already know that you have the opportunity to protect your rights by court order and request the employer to return you to work and pay you the compensation.
Right to compensation in unemployment
Upon termination of the employment relationship, the employer is obliged to hand you within three days the documents stamped and listed in order not to lose your right to register within 7 days at the Labor Office.
The persons for whom social security contributions have been paid or due to the Unemployment Fund for at least 12 months in the last 18 months before termination of insurance are entitled to the right to unemployment benefits.
The first step in receiving unemployment benefits is to register within seven working days of interruption at the Employment Agency. This is done in the District Directorates of the Labor Office according to your permanent or current address. Then, within 3 months, you must submit an application for granting unemployment benefit to the territorial division of the National Social Security Institute.
The daily unemployment benefit is 60% of the average social security income for which contributions have been paid in the last 24 months before the termination of insurance. If you have worked in Bulgaria and in another EU Member State, only the periods of unemployment and income through them in Bulgaria are taken into account when calculating the compensation. The compensation may not be less than the minimum amount determined in the state budget for each calendar year.
