15. 5. 2018
In the
decision VIII Ips 173/2017, by which the
contested decision was annulled, the Supreme Court held that the contractual penalty may be stipulated in the employment contract to the detriment of the worker in case of the breach of the competition clause.
During the consideration the Supreme Court determined that there are no justified grounds to depart from the previous case-law and that the employment relationships must also be assessed on the basis of the civil law rules, which apply mutatis mutandis, taking into consideration the principle of the contractual freedom in obligational relationships. As the law does not limit the claims of the contractual party in the case of the breach of the competition clause, an agreement on the contractual penalty is allowed. The Supreme Court also pointed out that the competition clause applies when the employee is no longer employed at the employer, and therefore not all rules of the labour law to the benefit of workers apply (for example, more favourable provision of the Employment Relationships Act (ZDR-1) regarding the liability of the worker for the damage caused).
The same does not apply to the breach of the prohibition of competition. In that regard, the Supreme Court explains that under the Employment Relationships Act (ZDR-1) the employer may claim the compensation for the damage caused by the breach of the prohibition of the competition (in addition, the employer may use other legally prescribed means against the worker, such as warning before the termination of the employment contract, disciplinary sanction, ordinary and extraordinary termination of the employment contract). As the law establishes explicitly only the right to the compensation for the damage, it is necessary to apply the provisions regarding the liability of the worker for the damage during the employment relationship that are milder from the general legal provisions regarding the liability. Consequently, in case of breach of the prohibition of competition, it is not possible to validly agree on the contractual penalty.
The Supreme Court further states that the possibility to agree on the contractual penalty cannot simply be extended to other areas of the labour law or to other breaches, such as not performing work, failure to comply with the employer’s instructions, failure to comply with the occupational health and safety regulations, violation of the obligation to inform, harmful conduct or breach of confidentiality.