What Happened
An employer documented an employee’s absenteeism, drew up a report, and sent a request for a written explanation. The employee gave no explanation. However, the employer issued the dismissal order without waiting for the full two working days required by Article 193 of the Labour Code — one day too early.
The first-instance and appellate courts sided with the employer: the absenteeism was proved, the dismissal was justified.
The Supreme Court reversed both decisions and held: a breach of the procedure for imposing a disciplinary sanction is itself an independent ground for finding the dismissal unlawful, irrespective of whether the underlying sanction was substantively justified.
Article 193 of the Labour Code: The Mandatory Procedure
The disciplinary procedure established by Article 193 of the Labour Code runs as follows:
- The employer discovers the breach and documents it (a report, a memorandum).
- The employee is given a written notice requesting a written explanation.
- The employee has two working days from receipt of the notice to provide an explanation.
- Only after that period expires may the employer impose a sanction — including dismissal.
- The disciplinary order must be acknowledged by the employee’s signature within three working days of its issue.
A failure at any of these steps makes the entire process defective.
Why Courts Allow No Exceptions
The Supreme Court consistently holds that the procedural provisions of the Labour Code are not a formality — they are a guarantee of the employee’s right to a defence. This is why the court does not consider whether the employee “would have explained themselves given another day” — this is irrelevant. The violation of the right to give an explanation is itself unlawful.
On the same grounds, courts reinstate employees where:
- no request for an explanation was made at all,
- the disciplinary order was not acknowledged by the employee’s signature,
- the sanction was imposed after the permitted deadline (one month from discovery, six months from the date of the offence).
Practical Guidance for Employers
Record the date the notice was served. The two working days run from this date. Personal delivery requires the employee’s signature. Postal delivery requires a delivery receipt.
Do not rush the order. Even if the employee refuses to give an explanation or does not respond — wait until the two working days have elapsed. The refusal is recorded in a separate report.
Check the limitation periods. A sanction cannot be imposed more than one month after the breach was discovered (the period is suspended while the employee is on sick leave or annual leave).
Obtain the employee’s signature. If the employee refuses to sign the order, draw up a refusal report in the presence of witnesses.
A single missed working day in the process can result in the employee being reinstated and the employer paying their average wage for the entire period of forced absence.
Frequently Asked Questions
If an employee refuses to give an explanation, can the employer dismiss them immediately? No. The employer must wait until two working days have elapsed from the date the notice was served and record the refusal in a separate written report. Only then may a dismissal order be issued.
Can the employer cure the procedural defect and re-dismiss the employee? Not if the limitation periods have expired. A disciplinary sanction must be imposed within one month of discovering the breach and within six months of its commission. An order cannot be backdated.
What is the employee entitled to on court-ordered reinstatement? Reinstatement to their position, payment of average wages for the entire period from dismissal to reinstatement (forced-absence pay), and compensation for non-pecuniary harm (moral damages).
What is the deadline for challenging an unlawful dismissal? One month from the date of receipt of a copy of the dismissal order or the employment record book (Article 392 of the Labour Code). Missing the deadline without good cause results in the claim being denied.
Read Also
- Absenteeism and Dismissal: The Employer Must Prove Actual Harm
- Dismissed for Using the Internet at Work? Without Proof of Harm, It’s Unlawful
Planning to dismiss an employee for a disciplinary breach, or have you already received a reinstatement claim? Contact us for legal advice — we will audit the procedure and prepare your position for court.