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Admissibility of terminating the employment contract via e-mail
In the current situation of the coronavirus threat, employers are forced to look for savings and cut costs, many of them opt for the procedure of collective redundancies or termination of contracts with individual employees. In a standard situation, the employer, through an authorized person, gives the employee a notice of termination, the receipt of which is confirmed by the employee. Nowadays it can be more complicated as many employees work from home remotely. Taking into account the limitations related to the functioning of the post office, many people consider the possibility of terminating an employee’s employment contract by e-mail.
I. Lack of solutions in the labor code
The Labor Code does not provide for the possibility of terminating an employment contract by e-mail, based on a classic, slightly outdated solution that requires a written form:
Art. 30 § 3 of the Labor Code:
OEach party’s declaration of termination or termination of the employment contract without notice should be made in writing..
However, it should be remembered that in special situations (provided for in Article 300 of the Labor Code), the provisions of the Civil Code may be applied in the labor law, and the latter is more flexible in terms of modern technologies.
Art. 781 of the Civil Code
- 1. To maintain the electronic form of a legal transaction, it is sufficient to submit a declaration of will in electronic form and affix it with a qualified electronic signature.
- 2. The declaration of will submitted in electronic form is equivalent to the declaration of will submitted in writing.
II. It is inadmissible to send the notice of termination in the form of a photo or scan
It should be remembered that the requirement of an electronic signature cannot be equated with sending a notice in the form of a photo or scan to the employee’s e-mail address, fax or via popular messengers such as whatsapp or facebook. Such a situation is unacceptable, which was clearly pointed out by the Supreme Court. Although his ruling is over 10 years ago, and in the meantime, there have been judgments that allowed for more flexibility in the form of termination of the contract to an employee, it should be assumed that due to the amendment to the Civil Code and the introduction of the above-mentioned Art. 7811 of the Civil Code, the case was resolved.
Therefore, one should agree with the view (see the justification of the judgment of the Supreme Court of 24 August 2009, I PK 58/09) that:
“The requirement to keep a handwritten signature is not met, if it is not an original mark, but only reproduced using carbon paper, photocopier, scanner, fax,”etc. (…)”
Justifying its position and specific requirements regarding the form of termination of an employment contract, which must be met by the employer, the Supreme Court again referred to the guarantee function of labor law and the resulting need to protect the interests of the employee as the “economically weaker” party to the employment relationship.
Termination of the contract by e-mail is permissible, but provided that an electronic signature is used.
This means that the safest form of termination of an employment contract, from the employer’s point of view, is sending a document with an electronic signature, or sending a notice of termination by traditional mail. In contrast, these restrictions do not apply to an employee who, as the “weaker party to the employment relationship”, has much more room for maneuver.