Four pitfalls for an employee – eliminating a position

The liquidation of a job is considered to be the safest justification for the termination of an employment contract. It probably stems from the fact that in such a case it is not necessary to prove poor quality of work of the employee, inadequate attitude to the duties or lack of required skills. However, extensive case law on this issue indicates that the reality is more complicated.
Liquidation of a position is not a guarantee of avoiding a dispute on the legitimacy of termination.
1 – ostensible liquidation of a position
The employer is free to decide on the organizational structure, the distribution of duties, or the need for work. The circumstances that prompted him to make changes in this respect are not examined by the court in the event of a dispute with the employee. Therefore, the court will not assess whether such changes were necessary or not. However, it will check whether the changes constituting the basis for termination of the employment relationship actually occurred.
Apparent liquidation of the workplace may be indicated by the fact that the vacancy appeared in the company under a different name, but with a similar scope of duties. The ostensibility may also be evidenced by the recruitment in a short time interval for the same or another position of similar importance for the employer. The identity of the positions will not be determined by their formal separation in the organizational structure, but by the determination of the scope of duties and functions assigned to them.
2 – ostensible reason for liquidation of an employment position
The decision to liquidate a job position always has its justification in specific circumstances.
Therefore, if the employer at the stage of informing the employee about the reasons for liquidation indicates, for example, changes in the organizational structure, then in the course of legal proceedings the employer will have to prove its connection with the liquidation of the workplace. Referring to other circumstances, about which the employee was not previously informed, for example economic reasons, will not be taken into account by the court. This is due to the fact that in the course of court proceedings only the circumstances constituting the reason for termination of the employment contract, about which the employee was informed beforehand, may be proved.
3 – the liquidation of the position is only the intention of the employer
If the termination of the employment contract is based only on the mere intention to liquidate the workplace and is not accompanied by concrete decisions, the termination of employment due to liquidation of the workplace will be considered unjustified. In such a case, there is no actual liquidation of the position and there is no indication that such an effect will occur within a certain period of time.
4 – lack of indication of the criterion for selection of an employee
If the liquidation concerns one of the same work position, so one employee is dismissed from among many performing the same work, the mere indication that the reason for the termination is the liquidation of the work position will not be sufficient to recognize that it is justified. In this case the employer must additionally indicate the selection criterion, which means that the employer must explain to the employee what circumstances determined that he was dismissed. Judicial jurisprudence accepts that the criterion for selection may be length of service, possession of skills useful from the point of view of the employer, as well as the personal situation of individual employees. Failure to indicate the selection criterion may result in the termination of the employment contract being invalid.
Indicating the liquidation of the position as a reason for termination of the employment contract will be justified only on condition that the employer actually took steps in this direction, both formally and factually. In this way, a dispute over the legitimacy of the termination can be avoided.

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