Courts are forming a new position regarding the dismissal of an employee by termination agreement. Thus, in the decision of the Second Court of Cassation of General Jurisdiction on July 27, 2021 in case N 8G-15840/2021 canceled the agreement of the employee and the employer.
The court pointed out that labor law does not contain certain rules for the conclusion of an agreement to terminate an employment contract. The legal nature of the said basis for termination of an employment contract, which depends on the mutual voluntary expression of will of the two parties to the contract, implies the need to establish that each party must consent not only to the very possibility of terminating an employment contract on the said basis, but also understand the form and time of the agreement, when it will be deemed finalized.
In the said case, it is established that the employee was deprived not only of the opportunity to assess the legal consequences of his signing the agreement to terminate an employment contract, but also the opportunity to make a conscious choice of the grounds for dismissal, thereby expressing his true will to terminate the employment contract on this ground, the consequence of which was the loss of work.
Key Action Points for Human Resources and In-house Counsel
Ensure that termination agreements include provisions confirming that the employee is not under pressure from the employer and fully understands the moment of signing of the agreement and its consequences, had time to take the decision, and no future changes in his/her status may affect this decision to separate.
Also, we recommend to ask employees to file application requesting dismissal by termination with specific severance so that such application serves as evidence of their good will to sign the agreement.