Pursuant to Art. 330 (1), item 6 of the Bulgarian Labour Code /hereinafter LC/ the employer may terminate the employment contract without notice when the employee/worker is dismissed for disciplinary reasons. The regulation on the implementation of disciplinary responsibility of the employee/worker is contained in Chapter IX, Section III of the LC. In order for the employee/worker to know how to protect themselves against unlawful dismissal by their employer, they should be familiar with the detailed procedure for imposing a disciplinary sanction - dismissal. To this end, the foregoing article will introduce you to the types of disciplinary grounds for disciplinary dismissal, as well as the authorities competent to impose this punishment. Finally, we will look at the procedure under which the employee/worker may invoke protection and on what basis they may bring an action against unlawful dismissal imposed by the employer.
Violation of the labour discipline is any fault of the employee’s/worker's employment obligations. Art. 187 LC sets out various types of violations of the labour discipline - delay, early exit from employment, absence from work, ineffective and inefficient work, failure to fulfill the orders of the employer, and Art. 126 LC lists the duties of the employee/worker in the performance of the assigned work - to come to work and be in the workplace by the end of their working hours, to come for work in a condition that allows them to perform their tasks, to not use alcohol or other such substances during working hours. When the employee/worker has committed any of these offenses, the employer may impose one of three penalties: reprimand, dismissal notice or dismissal. These penalties are expressly governed by the legislature in Art. 188 LC, being independent from one another. Furthermore, only one penalty may be imposed for the same violation. Depending on the gravity of the offense, the circumstances under which it was committed and the behaviour of the employee/worker, the employer may impose any one of these three penalties.
Grounds for disciplinary dismissal
- Art. 190 (1) LC sets out an exhaustive list of the grounds for disciplinary dismissal, namely: three delays /reporting to work late/ or early departures /before the end of working hours/ at the workplace within one calendar month, each of which not less than 1 hour. For this offence to be committed, the employee/worker must be late to work or leave work early within one month, the duration of any delay must be at least one hour, i.e. if the three delays are not within one calendar month and are not as long, that penalty cannot be imposed on the employee/worker.
- Absence from work for two consecutive working days - this violation covers absence from the workplace within two consecutive working days. If the offence is committed in non-consecutive days, dismissal on this ground cannot be imposed on the employee/worker.
- Systematic violations of the work discipline - system are those violations that have occurred three or more times, regardless of whether they are of the same type. Gravity of the infringement in this case stems from the frequency of their performance and the tenacity in the behaviour of the employee/worker, who thereby violates their working obligations.
- Abuse of employer’s confidence or divulging proprietary information of the employer - Court practice has accepted that there should be intentional behaviour to "use the confidence of the employer for the purpose of unlawfully obtaining benefits for the employee/worker or a relative thereof" and to undermine the prestige and reputation of the employer as "unfair attitude towards the employer, disregard for their reputation and defamation before third persons". According to case law, there is abuse of the confidence of the employer even if no material benefit for the employee/worker or a relative thereof is proven to exist /Supreme Cassation Court, Decision № 80 of 26.03.2010/. Abuse of confidence of the employer is desired, intentionally wrongful, i.e. willful action.
- Causing losses to other persons by employees/workers in the trade and services industries by fraud in the price, the weight, the quality of the item or service - fraud under the Criminal Code represents instituting or maintaining deception by someone in order to provide oneself or another with property benefits and thereby causing property damage in a foreign legal area. This violation can only be intentional.
- Participation in gambling by means of telecommunication means of the enterprise and the costs incurred shall be reimbursed in their full amount. According to Art. 2 (1) of the Gambling Act, "Gambling is any game that involve betting and making a potential profit or losing the bet." A requirement for the application of that rule as grounds for disciplinary dismissal is the telecommunications means used by the employee/worker to be owned by the respective company. The legislator introduced this ground for disciplinary dismissal due to the potentially significant amount of these damages.
- The final grounds for disciplinary dismissal according to the legislator are "other gross violations of the work discipline". These are or can be any other violations of the work discipline under Art. 187 LC, which represent important employment obligations of the employee/worker and adversely affect the interests of the employer. This is a matter of individual assessment, the SCC holding that "gross violations" are "reporting to work drunk," "causing significant damage to the employer," "exercising physical or psychological violence on a student by a teacher."
Obligations of the employer arising before proceeding to disciplinary responsibility of the employee/worker
According to Art. 193 (1) LC, the employer is obliged, before imposing disciplinary dismissal, to hear the employee/worker or to accept a written statement in relation to the respective violation. It is important to note that if the employer does not fulfill this obligation, the court shall revoke the disciplinary dismissal without evaluating its substance, i.e. failure to do so is sufficient grounds for the annulment of the unlawful dismissal. According to the latest amendment of Art. 192 (1) LC, in force since 17.07.2015, the disciplinary penalties can now be imposed not only by the employer or any other legally authorised entity, but also by an official with managerial functions chosen by the employer.
Another important obligation of the employer in connection with the imposition of disciplinary punishment is to do so within two months of the establishment of the violation, but not later than one year since it was committed (Art. 194 (1) LC). If the violation constitutes a crime or administrative offence established by a final court sentence or a penal decree, these time limits begin to run after the entry into force of the sentence, respectively penal decree.
The disciplinary penalty is imposed by an order, which shall state:
- the offender;
- the offence;
- the date of committing the offence;
- the penalty and the legal grounds on which it is based.
If the employee/worker falls into the following categories: mother of a child under the age of 3; reassigned employee/worker in use of their paid annual leave; suffering from disease, determined by the Minister of Health; an elected representative of employees/workers in a trade union or other representative organisations; a member of a special negotiating body; a member of the European Labour Council or a representative body in a European commercial or cooperative company, then the employer may fire them only with the prior consent of the Labour Inspectorate in each case.
A disciplinary order shall be served against the signature of the employee/worker and the employment relationship is deemed terminated from this point onwards.
Appeals against disciplinary dismissal in court
The date on which the disciplinary order is served is also the starting date of the 2-month period in which the lawfulness of the dismissal of the employee/worker may be challenged. The claim is cognisable in the district court of the seat/location of the employer in the first instance. According to Art. 114 of the CPC, an employee/worker may also bring their action at the place where they habitually carry out their work. An important feature of the proceedings in labour cases is that it is free for employees resp. workers, i.e. they do not pay the related fees and expenses, including applications for revocation of final decisions on labour cases (Art. 359 LC). By its action under Art. 344 (1), item 1 LC, the employee/worker may request recognition of the dismissal as illegal as well as its annulment, with a claim under Art. 344, (1), item 2 LC - to demand their reinstatement and with an action under item 3 - be awarded compensation in their favour, equal to the losses suffered as a result of the dismissal. Court practice has accepted and held in a general assembly of claims for recognition of dismissal as illegal and its revocation, and even more often asking for reinstatement and an action for compensation. The claim for reinstatement as well as the action for compensation largely depend on the success of the application for recognition of the dismissal as illegal and its revocation. In the event that the court reverses the dismissal as illegal and upholds the claims, these circumstances must be entered in the workbook of the employee/worker so that they could benefit from them.