Legal News [October 2023]: Application of the protection period during pregnancy
The following lines of the current Legal News deal with, inter alia, two decisions of the Supreme Court related to the termination of an employment relationship. In the matter of the burden of proof for the existence of an employee’s pregnancy, the Supreme Court decided that the employee bears the burden of proof at the time and before the time of the delivery of a termination notice. In the case of a dispute over the start of a subjective period for the termination notice due to the reason of breaching an obligation, the Supreme Court decided that the start of a limitation period relates to the facts on the basis of which an employer then defines the reason for termination in the termination notice, not to the moment of the suspected breach of an obligation.
- In its most recent judgment Case No. 21 Cdo 1957/2022, the Supreme Court deals with the burden of proof regarding the existence of an employee’s pregnancy at the time of the termination of employment from the perspective of the application of a protection period (i.e. the prohibition of termination). Specifically, the Supreme Court addressed the matter of whether the employee bore her burden of proof of pregnancy at the time of the delivery of the termination notice if she demonstrates that she was pregnant shortly before the delivery of the termination notice, and whether the employer bears the burden of proof concerning its claim that the termination of pregnancy occurred before the termination notice was delivered and, therefore, the employee was not subject to the protection period. The Supreme Court concluded that there was no such a shift in the burden of proof in that case. The employee’s pregnancy shortly before the delivery of the termination notice is not a decisive fact from the perspective of a legal standard regulating the prohibition of the termination. Pregnancy at the time of the delivery of the termination notice is such a fact. It is then for the employee, not the employer, to allege and demonstrate that fact. Moreover, if there were to be a shift in the burden of proof, it would have to be defined by the law.
- The Supreme Court addressed the matter of a statutory limit for filing a legal action in the case where co-owners fail to adopt a decision on a significant matter concerning the undivided thing in its judgment Case No. 22 Cdo 3689/2022. The Supreme Court first stated that if the co-owners do not reach the necessary two-thirds majority to adopt the decision on a significant matter concerning the undivided thing, Section 1129 (1) of the Civil Code establishes the entitlement of a co-owner to file the legal action at the court regarding the decision of this matter. This is a constitutive decision that creates, modifies, or extinguishes a right and the corresponding obligation between the parties to the proceedings. The mere failure to obtain the necessary majority is sufficient to file the legal action, no other condition needs to be met. Therefore, the Supreme Court concludes that, in view of the statutory construction of time limits for filing the legal action in the individual specific cases, which are linked either to the adoption of the significant decision or to the decision adopted on an urgent matter that binds the omitted co-owner, no time limit is required for filing the legal action in the case of the failure to adopt the decision by the equal co-owners on a significant matter concerning the undivided thing within the meaning of Section 1129 (1) of the Civil Code.
- The matter of the start of the time from which the subjective term within which an employer may give a termination notice to the employee for the breach of an obligation is dealt with by the Supreme Court in its Resolution Case No. 21 Cdo 1407/2022. Based on its existing case law, the Supreme Court has stated that the employer’s knowledge decisive for the running of the two-month limitation period relates to the facts based on which the employer then defines the reason for termination in the termination notice. Therefore, it is not an indication that the breach of an obligation occurred, and it does not in itself provide the reason for termination. Such an indication only gives rise to suspicion and leads the employer to carry out an investigation, and its results help the employer to learn the existence of facts justifying the termination of the employment relationship on the basis of the termination notice. In the present case, the subjective limitation period started only after the monitoring of the claimant’s presence on the Internet that confirmed the employer’s suspicion that the employee was abusing her working time by surfing websites unrelated to her work, and not at the time when that suspicion arose.
- In its judgment Case No. 25 Cdo 3019/2022, the Supreme Court addressed the matter of whether the obligation to pay for damage caused by the provision of advice pursuant to Section 2950 of the Civil Code requires the existence of a contractual relationship between the provider and recipient of the advice. Pursuant to this Section, the person who, as a member of a particular vocation or profession, causes damage by incomplete or incorrect information or harmful advice provided for consideration in a matter related to their expertise or skill is liable to pay compensation for such damage. From the perspective of the systematic arrangement of the legislation, the state of facts pertaining to the obligation to compensate for damage caused is listed as the last type of expressly defined reasons for liability arising, as a rule, irrespective of fault in cases specifically defined by the law. On the other hand, the regulation of compensation for damage that is based on the breach of a contractual obligation stated in Section 2913 of the Civil Code is included in general provisions on the obligation to compensate for damage. Moreover, the wording of the hypothesis of the relevant provision does not mention, as a necessary condition, a direct contractual relationship between the provider of advice or information and an injured party as its recipient. On the basis of this basic linguistic and systematic interpretation, the Supreme Court concluded that entering into an agreement is not a condition for the establishment of an obligation to compensate for damage within the meaning of Section 2950 of the Civil Code.
- The Constitutional Court issued an interesting decision on the precedent character of court decisions in Case No. III. ÚS 3285/22. According to the Constitutional Court, it is not acceptable for the court to rule differently in the same matter under the same factual circumstances, even if two different decisions were adopted by two different chambers of the same court. The appeal court is obliged to respect the legal opinion it has previously expressed in the same matter, and the only relevant reason for departing from it – besides the cassation intervention of the Supreme Court accompanied by a binding legal opinion – may be a substantial change in the content of the factual basis. The present decision of the Constitutional Court concerned the situation in which the Supreme Court, instead of dismissing an appeal review for inadmissibility – since the judgment of the High Court was not a surprise decision within the meaning of case-law of the Supreme Court and the Constitutional Court, and a new instruction pursuant to Section § 118a of the Civil Procedure Code was not necessary in the appeal review procedure – set aside the amended judgment of the High Court against which the appeal review was filed and thus erroneously reopened the matter that had been finally closed. As a result of the above-stated procedure, the High Court in the new composition of the 12 Cmo Pannel expressly distanced itself from the legal opinion formulated in the same matter by the 5 Cmo Pannel, although the judgment against which the appeal review was filed was annulled only for procedural reasons (failure to provide an instruction).