The minimum duration of the notice period in case of termination of the employment contract

In contrast to an extraordinary dismissal, a regular dismissal terminates the employment contract with a notice period. The shortest period of notice is prescribed in Art. 122 of the Labor Act (hereinafter: ZR), and it depends on the previous duration of continuous employment with that employer. TEB Poslovno savjetovanje brings you all the rules related to the notice period.

In case of regular cancellation, the notice period is at least:

· 2 weeks if the employment relationship has lasted continuously for less than 1 year (exceptionally in the case of probationary work which can last no longer than 6 months, the notice period is at least 7 days)

· one month if the employment relationship lasted continuously for 1 year

· one month and 2 weeks if the employment relationship lasted continuously for 2 years

· 2 months, if the employment relationship lasted continuously for 5 years

· 2 months and 2 weeks if the employment relationship lasted continuously for 10 years

· 3 months if the employment relationship lasted continuously for 20 years (if the worker has reached the age of 50, this period is extended by another 2 weeks, and if the worker has reached the age of 55, by one month).

The specified deadlines are shortened by half if the employee's employment contract is canceled due to a violation of an obligation from the employment relationship, i.e. if it is a cancellation due to the employee's hidden behavior.

Notice period if the employment contract is canceled by the employee
In the event that the employee cancels the employment contract, a shorter notice period for the employee than for the employer can be determined by the collective agreement or the employment contract. In that case, a more favorable law for the worker will be applied in accordance with the rule from Art. 9, paragraph 3 of the ZR.

Furthermore, if the worker cancels the employment contract, the notice period cannot be longer than one month, if he has a particularly important reason for doing so (Art. 122, paragraph 7 of the Labor Code). Related to this provision, it is often a question in practice what is considered a particularly important reason, that is, whether employment with another employer can also be included in that reason.

From the rare judicial practice, we single out the interpretation of the County Court in Split in the case Gž R-557/2019 of 29 August 2019, in which the worker canceled the contract while observing the notice period of 30 days, and after the employer did not accept it, asking the worker to adheres to the regular statutory notice period, the employee terminated the contract by extraordinary notice:

"The law does not prescribe a single example of such a particularly important reason, nor is it prescribed who is authorized to assess whether a reason is particularly important for the worker, so that his notice period could be shortened because of it.

But in the opinion of this court, the intention of the legislator was to enable the worker to finish working with the existing employer as soon as possible, in case of some particularly important reason for him. Also, the worker is the one who should say and evaluate whether it is a particularly important reason for which the notice period cannot be longer than one month.

Regarding the change of job as a particularly important reason for shortening the notice period, it can represent a particularly important reason for the worker to shorten the notice period, if he thinks so, but the same should be determined in each individual case, depending on the circumstances of the case.

Namely, if employment with a new employer is conditioned by the fact that the worker must start working there as soon as possible (that is, before his regular notice period should expire), in that case the worker would need to have his notice period shortened, so it is to be appreciated that these are particularly important circumstances due to which the employee's notice period should be shortened. Also, it is possible that this is an extremely big business opportunity that the employee does not want to miss (but even in that situation, a necessary condition would be for the new employer to request that the new employee start working for him immediately or very soon, in any case before the expiration of his notice period deadline). If the new employer did not set such a condition, then there would be no justified reason for the worker to demand that his regular notice period be shortened.

The worker is obliged to prove the existence of a particularly important reason for shortening the notice period, because the general rule is that whoever claims something must also prove it. If the worker does not prove the existence of such a reason, the employer may ask him to complete the prescribed or agreed notice period, and if the worker does not do so, the employer has the right to compensation.

So, when an employee resigns from his employer, a change of job can be a particularly important reason for shortening the notice period, but this must be determined in each individual case, bearing in mind the above, which, however, the court of first instance failed to do in a valid manner in this case .“

Employee rights during the notice period
During the notice period, the employee has the right to be absent from work for at least 4 hours per week with pay in order to look for a new job, and if the employee is released from the obligation to work during the notice period, the employer is obliged to pay the salary and recognize all other rights as if he had worked until the expiration of the notice period.

Thus, the notice period is included in the completed months for exercising the right to severance pay and compensation for unused annual leave.

Other rights include the right to compensation for transportation costs and all other material rights that would belong to him in that employment relationship if he was not released from the obligation to work, i.e. as if he were serving the notice period. For example, if an employee were to realize the right to a jubilee award, because during the notice period he would have completed the contracted years of service, the employer should also pay him that award. This is because during the notice period, the rights and obligations from the employment contract continue to flow, including the agreed salary and material rights.