Employment relationship during military service
1. How long should an employer be notified in advance about the situation before commencing service?
The Employment Contracts Act does not stipulate the format or term for notifying an employer about commencing military service. Considering the principle of good faith applied to employment relationships and taking into account the interests of the other party, an employee shall provide the employer with important information as soon as possible. Therefore, if commencing military service becomes certain, the employer should be notified.
Many employers have stipulated the principles of notification of an employee’s commencement of military service and return to employment in the organisation of work rules.
2. How should the employer be notified? (Orally, in writing, with evidence?)
In order to avoid later disputes, it is advisable to give notice in a format which can be reproduced in writing, for example by e-mail or by submitting a relevant written application. When submitting a written application, make sure that it is also registered with the employer, if you send an e-mail, keep a copy for yourself just in case.
3. On what grounds can an employer cancel an employment contract during military service? (Lay-off, agreement between the parties?)
Pursuant to clause 92 (1) 6) of the Employment Contracts Act, an employer may not cancel an employment contract on the ground that the employee is in military service, alternative service or reserve service.
However, cancellation of an employment contract on other grounds is not prohibited.
An employer shall always have a legal basis for cancelling an employment contract, i.e. an employment contract can only be cancelled on the bases permitted by law. Pursuant to the Employment Contracts Act, an employer may cancel an employment contract extraordinarily either on the basis of section 88 of the Employment Contracts Act for a reason arising from the employee or on the basis of section 89 of the Employment Contracts Act due to the employer’s economic situation, i.e. due to lay-off.
If the position of an employee is abolished while he or she is in military service, the employer has the right to extraordinary cancel the employment contract. An employment contract may be cancelled by a declaration of cancellation made in a format which can be reproduced in writing. This means that the employer can send an e-mail or SMS to the employee regarding the cancellation of the employment contract, but the employer shall also give reasons for the extraordinary cancellation of the employment contract.
An employment contract can always be cancelled by agreement between the parties but both parties to the employment relationship shall express their will clearly and unambiguously to do so. It should be the actual wish of both parties.
4. An employee is in military service but no longer wants to return to the same employer. Is an employee obligated to return to the same employer? Should the employee, if he or she so wishes, write a letter of resignation, and can this be done during military service, or should he or she wait until the end of the military service and then continue working for the employer for another 30 days?
Despite the fact that an employment relationship is suspended during conscription, the employee is still in a valid employment relationship until one of the parties terminates the employment relationship or the parties terminate the employment relationship by agreement.
An employee may ordinarily cancel an employment contract entered into for an unspecified term at any time (subsection 85 (1) of the Employment Contracts Act) by notifying the employer thereof at least 30 calendar days in advance (subsection 98 (1) of the Employment Contracts Act). Being in military service does not prevent an employee from submitting a declaration of cancellation, so an employee can submit the declaration during military service. It is important that the employee complies with the term for advance notice (30 calendar days).
5. Since the contract of employment is not cancelled during the military service but is suspended, does the employer have the right to oblige or ask an employee in compulsory military service to perform their duties?
Any right of an employee provided by law always corresponds to an obligation of the employer. As an employee has the right to refuse to perform work, in particular if the employee is in compulsory military service or alternative service or is participating in reserve training pursuant to clause 19 5) of the Employment Contracts Act, an employer cannot request or ask for work during such time.
6. Can a conscript continue to work during compulsory military service?
During military service, a person is in the service of the Defence Forces, i.e. performing a national defence obligation that does not allow him or her to continue his or her employment at the same time. However, it is possible to work during military service leave. In this case, the employer shall terminate the suspension of employment in the register for the period for which the employee returns to work. The employer shall confirm the suspension of employment contract again in the register no later than at the end of the employee’s leave.
7. Although expiry of the claim for annual holiday is suspended when the employee is undertaking military service or alternative service, what happens to the length of employment?
An employment relationship lasts until cancellation of the employment contract and that includes time in compulsory military service. This is important when calculating the notice periods for cancellation of employment.
For example, if an employee commenced work for an employer in January 2014, was in military service in 2017 and the employer wants to lay him or her off in 2019, the employer shall take into account that the employment relationship has lasted 5 years and thus the employee shall be notified of extraordinary cancellation at least 60 calendar days in advance.
8. What happens to an employment contract has been entered into for a specified term or contract for services during military service?
An employment contract entered into for a specified term expires upon the expiry of the term. If the term of the employment contract arrives while the employee is in compulsory military service, the employment contract expires and the employee cannot demand work from the employer when he or she returns from compulsory military service.
The employer does not have to notify the employee of the expiry of the term of the employment contract. However, the employer shall issue a certificate to the employee for the Unemployment Insurance Fund, should the employee wish to register as unemployed after the end of compulsory military service.
The duration of a contract for services concluded for the performance of a specific order depends on the term of performing the contract agreed in the contract. A contract for services can also not be performed during compulsory military service. If the term of this contract arrives while the person is in compulsory military service, the person shall not keep performing the contract after returning from compulsory military service. But if the term for performance of the contract continues, the contract shall be performed upon returning from compulsory military service.
9. Does a business owner have any legal basis to request a possibility to handle their business during military service?
The law does not provide for such a possibility.
10. How soon must I return to work after completing my compulsory military service?
You only have the right to refuse work while in compulsory military service, so as soon as possible after the end of military service.
11. What should I do if my employer refuses to suspend my employment contract and forces me to write a letter of resignation?
An employer cannot refuse to suspend an employment contract. After an employee has informed the employer by e-mail or hand-written application that he or she must take up compulsory military service, he or she exercises the right to refuse to work, i.e. he or she will no longer go to work but military service.
An employer cannot request a so-called letter of resignation, i.e. an application for ordinary cancellation of an employment contract. Ordinary cancellation of an employment contract may only be based on the employee’s free will, i.e. the employee shall wish to cancel the employment contract. If this is not really the employee’s wish, he or she shall not write a letter of resignation.
12. What should I do if the employer refuses to take back the employee after compulsory military service?
An employer can refuse to perform an employment contract only if the employment contract has expired. However, as has already been stated, there must be a legal basis for cancelling an employment contract. Until an employee has received an application for extraordinary cancellation of the employment contract, he or she has the right to demand performance of the employment contract and that he or she is allowed to work.
In any case, the employee should request an oral and written explanation from the employer as to why he or she is not allowed to work and clearly express his or her will to continue work by going to his or her current workplace by the beginning of the working day or turning to the legal representative of the employer. If the employer announces to the employee orally over the phone or when the employer sees him or her that the employee is no longer needed and he or she should not come to work, the employee should not be distressed by it. An e-mail or registered mail should be sent to the employer to receive an explanation. The employee should have proof that he or she did everything in his or her power to express his or her wish to continue working for the employer.
Participation in reserve training
An employee has the right to refuse to perform work if he or she participates in reserve training. An employer is not obliged to pay an employee for the time spent in reserve training.
The payment of remuneration to a reservist is regulated by the Regulation of the Government of the Republic “The extent and payment of support to conscripts and persons in alternative service , the support paid to reservists for participating in reservist training, and the child support paid to conscripts and persons in alternative service”.
It is not necessary to suspend employment in the employment register if an employee is in reserve training.