12. 4. 2017

Revised rules on service of notice of termination

Under current ERA-1 rules employers may serve Notice: (i) (as a rule) in person at the employer's premises, (ii) by registered mail with recorded delivery to the address specified in the employment contract, unless the employee subsequently communicated another address, or (iii) where the employee is not a Slovene resident or where his/her address is unknown, by publishing it on a company notice board that the employee has access to.
 
ERA-1 rules on service of Notice are less formal than in the previous Employment Relationship Act (ERA). Service is possible solely by sending the Notice by registered mail with recorded delivery, which is far less complex and faster than personal service as stipulated under rules previously in force. Furthermore, Article 88(4) of the ERA-1 provides for a fiction of service; even if the employee never collects the registered post with recorded delivery, the service is deemed successful after 8 days of the first service attempt (where the employee collects within 15 days, the Notice is deemed served on the collection date).

In the case, based on which the Slovene Constitutional Court made its decision, the employee never received the Notice due to the letter never having been left in his/her mailbox and the sender was not identified on the recorded delivery slip. The employee learned of the Notice more than two months later at the employer’s premises. The Constitutional Court argued that service of Notice is a prerequisite for successfully challenging the Notice, which could be of vital importance for the employee and his/her family. For this reason, the employee should at least have knowledge of the termination. The rules as they stand, also considering the time limit of 30 days for filing an action against the termination, are unconstitutional.

Until a new regime for serving Notice is put in place, the Constitutional Court ruled that employers should adhere to the old rules set in the ERA. As of 1 April 2017, Notice is to be served in the same way as most important court decisions, i.e. in accordance with the rules of personal service specified in Articles 140, 141 and 142 of the Civil Procedure Act (CPA). A maximum of two attempts to serve Notice will be made. If the person responsible for the service is unable to serve the Notice at the first attempt (either to the employee or a member of his/her household), he/she will need to leave an attempted delivery note detailing information as to where the Notice can be collected and 15-day deadline in which it has to be collected. If the employee fails to collect the Notice within the time limit, the Notice will be left in his/her mailbox.

Rules on service of Notice using private detectives or employee’s proxy remain in use, since the rules specified in the CPA continue to apply in case the ERA-1 does not regulate certain topics. For the Notice to have effect, it is paramount that it actually be served on the employee, with the manner in which it is done so being of less significance. Every service error or omission does not yet constitute unlawful termination, even more so if the employee is aware of the pending Notice and has promptly filed an action against it.
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