At what point will the employment contract end, if the nullity of an extraordinary declaration of cancellation made by an employee is established?

According to the Employment Contracts Act there is two ways how an employee can terminate the employment contract: by ordinary cancellation or extraordinary cancellation.

An employee may ordinarily cancel an employment contract any time regardless of the reasons, by notifying the employer at least 30 calendar days in advance. The law does not however provide the notification deadlines for extraordinary termination of an employment contract for the employee. An employment contract may be cancelled extraordinarily only with good reason, above all when taking into account all the circumstances and mutual interests, the continuance of a contract cannot be reasonably demanded.

From time to time there are cases in practice, where the employees, hoping to get a benefit for the termination of an employment contract, provided in the Employment Contracts Act section 104 subsection (4), file a declaration of extraordinary cancellation based on the alleged fundamental breach of the obligation by the employer, instead of filing a declaration of ordinary cancellation with a 30 calendar days´ notice, in which case the employer is not obliged to compensate that kind of benefit. If the employer, in order to prevent paying the benefit, contests the cancellation of an employment contract made by an employee and argues that this kind of infringement has not taken place and therefore there is no legal bases for the extraordinary cancellation and for the benefit ordered, and the labour dispute committee or the court establishes the nullity of a declaration of extraordinary cancellation made by the employee – has in practice caused a confusion, of what point should the employment contract considered to be expired.

Answer to this question is to be found in a recent Supreme Court decision number 3-2-1-126-14. In the referred decision the Supreme Court explains, that when the labour dispute resolution body establishes the nullity of a declaration of extraordinary cancellation made by the employee, then the employment contract is considered to be terminated ordinarily on the basis of the Employment Contracts Act section 85 subsection (4) by the labour dispute resolution body. In this case the employment relationship will not continue according to the Employment Contracts Act section 107 subsection (2), but ends at the time when the employment contract, adhering to the term for advance notice, would have been terminated. While according to the Employment Contracts Act section 98 subsection (1) an employee shall notify the employer of ordinary cancellation no less than 30 calendar days in advance, is the cancellation of an employment contract by the employee, according to the Employment Contracts Act section 85 subsection (4) considered to be an ordinary cancellation and that in 30 calendar days after the cancellation.

The article can be read here: http://addenda.ee/vandeadvokaat-annika-vait-mis-hetkest-lppeb-tooleping

For further information please contact Annika by e-mail annika@alternalaw.ee or by calling +372 680 6850.

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