As is well known, an employment contract is almost always concluded in writing. Pursuant to the provisions of the Labor Code, such a contract should be terminated or terminated in writing. The COVID-19 pandemic has shown, however, that this principle cannot always be implemented by its addressees – the inability to meet face-to-face and difficulties in the activities of postal operators encourage the use of electronic communication forms in various areas of life. However, can they be used to terminate an employment contract?
It is worth noting that the Labor Code is silent on possible sanctions for failure to comply with the written form (such as, for example, invalidity of the termination of a contract), and does not delve into the technical issues of employee and employer declarations. Art. 300 of the Code requires matters not regulated by the Civil Code. It is in its provisions, namely in Art. 60, we will find the answer to the question that bothers us. According to this provision, the declaration of intent of any person (and such declaration is the termination of the contract) may be expressed by any behavior of that person that sufficiently discloses his will. Further, the provision also indicates the admissibility of the electronic form of a declaration of will – that is, for example, expressing it via e-mail.
Therefore, it should be considered that the termination of the employment contract may be made in electronic form. Although from the point of view of the Labor Code it will be defective, due to the lack of any sanction for failure to comply in writing, it will be effective in accordance with the provisions of the Civil Code, and the employer will not be able to pursue any claims from the employee related to a defectively submitted declaration of intent.
It is worth noting that the Supreme Court also referred to the issue of termination of employment in the judgment in case I UK 94/16 of March 9, 2017. The Supreme Court even came to the conclusion that the agreement of the parties or the termination of the employment contract may be expressed implicitly (which is allowed by the provision of Art. 60 of the Civil Code). This allows us to assume that even more so, they can take the form of a clear and comprehensible electronic message.