According to the judgment of the Supreme Court of February 19, 2021 (file reference number I PSKP 9/21), the employer cannot arbitrarily dismiss a specific employee, but must follow certain criteria to evaluate other employees to be dismissed. Otherwise, the employer will discriminate against the arbitrarily dismissed employee. If the employer selects an employee from among other employees working in the same position, the reason cannot be solely organizational changes in the workplace. They must also be the above-mentioned specific and employer-defined criteria. These criteria must be specific enough for the labor court to be able to assess their legitimacy in future, potential proceedings – so they cannot be arbitrary.
In addition, when assessing the legitimacy of dismissing a specific employee selected on the basis of specific criteria, the individual situation of the employee is also taken into account. As the Supreme Court points out: „As a consequence, in the event of termination of employment for organizational reasons attributable to the employer, it is assumed that providing the employee with a written declaration of the employer’s will – as the reason for termination – of these changes and proving their existence before the labor court. does not always mean that the employer complies with the formal requirement of the Labor Code and that the termination itself is justified in (…). For if the liquidation concerns only part of a larger number of the same or similar jobs, the reason for the termination specified in this way explains the necessity to implement the dismissal procedure, but does not explain why the employment relationship with a specific employee was terminated and other persons holding the positions covered by the reduction were left in employment. „. This means that the employer must justify why it was this employee who terminated the contract.
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