In our article from the beginning of this year entitled Expected amendment to the Labour Code submitted to legislators – summary of planned changes, we have summarized significant changes that would be brought for employees and employers by a possible approval of the long-awaited amendment to Act No. 262/2006 Coll., the Labour Code , as amended (hereinafter the “Labour Code”), which was submitted to the Chamber of Deputies for discussion at the beginning of this year (hereinafter the “Amendment”).
Given that the Amendment was approved by the Chamber of Deputies in the third reading on 29 May 2020 and subsequently approved by the Senate on 10 June 2020, it can be assumed that its entry into force in the following months or at the beginning of 2021 at the latest can be expected.
This article, devoted to the planned changes in the delivery of documents within employment relationships, launches series of articles in which we will discuss in detail the fundamental changes to the Labour Code that the Amendment is about to bring.
Changes in the concept of delivery of documents
One of the areas whose regulation in the Labour Code has long been subject of criticism by the public, especially for its impracticality, is the area of delivery of documents relating to the creation, changes and termination of employment or agreements on work performed outside employment, as well as documents concerning dismissal from the managerial positions, remuneration (salary or wage assessment) or record of a breach of the regime of temporarily incapacitated insured person (hereinafter the “documents”).
The current legal regime for delivery of documents is based on the concept that documents must be delivered to employees in person (Section 334(1) of the Labour Code). At the same time, the employer delivers the documents in person to the employee at the workplace, to his apartment or wherever the employee is to be found or through an electronic communications network or service, and if this is not possible, the employer may deliver the documents to the employee through a postal service provider (Section 334(2) of the Labour Code). Thus, under the current legal regime, the employer can practically choose between several delivery alternatives and none of these alternatives is preferred.
The Amendment partially abandons the concept of alternative in the methods of delivery and stipulates that the document is delivered by the employer to the employee primarily in person at the workplace. The Amendment therefore removes the obligatory attempt to deliver the document at the employee’s apartment or wherever the employee can be found.
When it will not be possible to deliver the document to the employee at the workplace, the employer will have a choice of several other delivery options, this list does not specify the hierarchy of their use, and again the employer can choose between them:
- wherever the employee is to be found,
- via a postal service provider,
- via an electronic communications network or service, or
- via a data box.
With regard to the general rules concerning delivery by the employer, the Amendment, in addition to the above change in the concept of delivery, repeals paragraph five of Section 334 of the Labour Code, which stipulates that the conditions for delivery of documents to an attorney are governed by Section 48 of the Civil Procedure Code.
Delivery by the employer via the data box
Although the rules for delivery by the employer via an electronic communications network or service remain unchanged according to the Amendment (Section 335 of the Labour Code), the Amendment in Section 335a comes with an alternative method of delivery via a data box if the document cannot be delivered to the employee in person at the workplace.
The employer will be able to deliver the document to the employee via the data box only if the employee gives his written consent to this method of delivery. This consent can always be granted for each specific case of document delivery or it will be possible to grant it in general.
Compared to the existing concept of delivery via the network or electronic communications service, the special legal regulation of delivery via the data box should simplify it, as the Amendment waives the condition of signing the document with a recognized electronic signature and the condition of confirming receipt of the document by an employee to the employer.
The Amendment also constructs a fiction that if the employee does not log in to the data box within 10 days from the date of delivery of the document to the data box, the document is considered delivered on the last day of this period.
Of course, the practical problem of this procedure remains the fact that natural persons are not obliged to have the data box, and therefore only a small percentage of employees has it.
Delivery by the employer via the postal service provider
After the Amendment, the rules for delivery by the employer via the postal service operator will also receive significant changes (Section 336 of the Labour Code). According to the Amendment, the employer should now send the documents to the employee via the postal service provider not to the last address known to the employer, but to the address that the employee communicated to the employer in writing.
Thus, a certain degree of responsibility of the employee is newly determined by written notification of the current address to which the employee wishes to be delivered the documents by the employer within the default employment relationship. The employee himself will thus be the obligated person who will report in writing the correct and up-to-date data for delivery and will thus bear partial responsibility in delivery.
Other significant changes in this area will be the lengths of deadlines for the so-called fiction of delivery (Section 336 para. 3 and 4 of the Labour Code). The current legal regime constructs the fiction of delivery in such a way that if the document is not delivered to the employee through the postal service provider and the employee does not collect the document within 10 working days, the document is considered delivered the last day of this period.
The amendment extends the above-mentioned collection period to 15 (calendar) days. Due to the specification of the beginning of the 15-day collection period, the beginning of this period is more precisely linked to the moment of unsuccessful attempt to deliver the document, the Amendment in Section 336 paras. 3 and 4 of the Labour Code no longer works with the term “delivered document” but only the “document”.
Even after the Amendment, it will still be the case that if the employee disables the delivery of the document through the postal service operator or does not provide the co-operation necessary for delivery, the document shall be deemed to have been delivered on the day the delivery of the document was prevented. The obligation of the delivery person to instruct the employee about the consequences of non-receipt of the document will also be maintained, but with the difference that it will no longer be necessary to write a written record of this instruction.
It will therefore still be necessary for the employee to send the document exclusively into the hands of the addressee and to use a special envelope containing instructions for the employees.
Delivery of the document addressed to the employer by the employee
According to the current legal regime, the delivery of the document addressed to the employer is fulfilled as soon as the employer has taken it over (Section 337 (3) of the Labour Code). In practice, however, a problematic situation may arise for the employee where the employer refuses to accept the document that the employee delivers to the employer, or the employee is otherwise prevented from delivering it. This usually happens after the end of longer-lasting obstacles at work on the part of the employee, when the employee finds out, when returning to the workplace, that the employer does not actually exist at the place of its registered office or at the place of its business. Employees thus find themselves in an unsolvable situation, where not only they cannot work, but also cannot terminate their employment. The Amendment deals with this issue by constructing the fiction that if delivery by the employee is prevented, the document is considered delivered on the day when such fact has occurred.
The last change in delivery by the employee to the employer and in the area of delivery in general is the insertion of a new paragraph 6 in Section 337 of the Labour Code, according to which, if the employer gives consent, the employee may deliver the document addressed to the employer via the data box. The difference from delivery via the data box by the employer to the employee is that written consent is not required here. At the same time, it is not required that the document be signed by the recognized electronic signature and that the employer confirms receipt of the document with a data message signed by recognized electronic signature or the recognized electronic seal. If the employer gives consent, the document delivered via the data box will be delivered on the day of delivery of the document to the employer’s data box.
Although the above-mentioned changes are likely to at least partially eliminate some of the issues related to the delivery of documents within employment relationships, the changes in this area cannot be considered sufficiently corresponding to the real needs of employees and employers.
Although one of the main intentions of the Amendment to the Labour Code was the reflection of current trends in labour law, the Amendment lacks incorporation of widespread communication via electronic, especially e-mail correspondence.
We therefore believe that the absence of sophisticated regulation of electronic communication, especially through e-mail, as a means of effective delivery of documents in employment relationships, reduces the Amendment’s complexity and has a shortcoming due to the increasing degree of digitisation.
JUDr. Jáchym Stolička, junior lawyer – email@example.com
Mgr. Jakub Málek, partner – firstname.lastname@example.org
12. 06. 2020