Refusal of employer 's instructions, unjustified absence, intentional damage: some cases where the justification for dismissing an employee is relatively easy to determine. What happens, however, if the employee does not commit a severe breach of duty similar to the one above, but his or her colleagues consider him incompatible, with whom it is impossible to cooperate, or even afraid of him or her. Can dismissal be justified by behaviour that is incompatible with others and creates disharmony in the working environment? In our article, we seek the answer to this question in the light of Hungarian judicial practice.

1. Dismissal in the Labour Code

The Labour Code[1] regulates two types of dismissal. In the case of “ordinary” termination, the employment relationship terminates at the end of the notice period. In the event of a more serious breach, the employer may terminate the employment relationship with immediate effect, in which case the employment will end immediately upon notice of the termination.

The essential difference between the two is that the rules for immediate termination are stricter, such termination can only take place in the event of a serious and blatant breach of obligations.

However, it is not clear from the wording of the Labour Code that, in connection with the incompatible behaviour, exactly what type and how severe conduct may justify dismissal. Thus, in the course of the investigation, we can rely on Hungarian court decisions and the legal literature.

2. Incompatible behaviour as a ground for dismissal

2.1 In the event of immediate termination

Pursuant to the LC, employment relationship may be terminated without notice if the employee wilfully or by gross negligence commits a grave violation of any substantive obligations arising from the employment relationship; or otherwise engages in conduct that would render the employment relationship impossible[2].

According to the LC, the aforementioned substantive obligations include that the employee shall:

- perform work in such a way that demonstrates the trust vested in him for the job in question[3];

- cooperate with their co-workers[4].

Compliance with the general rules of conduct and cooperation with colleagues are therefore essential obligations, the breach of which may even lead to immediate termination.

The Hungarian case law shows that in several cases the employer terminated the employment relationship with immediate effect on the grounds of the employee's incompatible behaviour. We describe some of the decisions below:

Case No. 1: The employee was unable to fit in with the workplace community and did not cooperate even after the objections to his conduct were made. By regular, unfounded criticism and openly uncooperative behaviour, he has disturbed the working atmosphere that normally should be based on mutual cooperation between the employer and the employee, as well as between employees. He mocked his co-workers, giving each of them a nickname based on their physique, or "external fault" and loudly called people he considered not intelligent enough stupid. He worked in an unbuttoned shirt.

Decision: according to the Supreme Court, the breaches of obligations that the employer could prove were not sufficient to justify the immediate termination.[5] 

Case No. 2: The employer gave notice of immediate dismissal on the following grounds: The employee spoke to his/her colleagues in an outspoken, firm tone throughout his/her employment. He/she was known to make comments to him/herself, but occasionally also out loud, and sometimes behind the backs of others. He/she interfered in the work of others, occasionally behaving in a condescending, mocking and disrespectful manner. He/she behaved in a humiliating, offensive, provocative manner with his/her co-workers, and his/her behaviour caused disharmony in the work environment and in his/her relationship with co-workers. The colleagues said that due to the incompatible behaviour, it was impossible to cooperate with the employee. When he/she was warned about the shortcomings of his/her work, he/she grimaced, teased his/her colleagues, instructed and mocked them.. 

Decision: according to the Supreme Court, the immediate termination was lawful.[6] 

Case No. 3: The employer gave notice of immediate dismissal on the following grounds: the workplace behaviour of the two employees has created such a bad atmosphere in the workroom that colleagues come to work every morning with fear. They often picked one person from the staff and then talked about that person for days in such a way that all employees knew about it. They threw the nylon bags used for their work to the floor despite the instruction of the employer and the standard workplace practice, creating the possibility of slipping and accidents.

Decision: according to the Supreme Court, the immediate termination was lawful.[7]

2.2 In the event of ordinary termination

According to the L.C., the employee’s behaviour in relation to the employment relationship may be the reason for dismissal, among others[8].

The L.C. does not describe the specific behaviours in this area either, however, according to the legal literature, the violation of the general rules of conduct and the obligation to cooperate are undesirable behaviours on which termination can be based[9].

We can find in the judicial practice several cases where the employee was dismissed by ordinary termination due to incompatible behaviour:

Case No. 4 : The employee failed to meet the basic standards of conduct expected in connection with his job. He did not perform his duties properly, as he spent most of his working time, despite repeated warnings, making private telephone calls and using the Internet and he kept saying alleged grievances. The employee consistently displayed “negative behaviour” at work, was hostile towards his co-workers, and in several cases criticized their work and behaviour in a highly offensive manner. He did not accept the constructive criticism and warning; he instead expressed his opinion that he finds such criticism offensive and insulting. On several occasions, he got into loud arguments with his colleagues, which he stopped only after repeated warnings. He also used an unacceptable tone with his managers, which caused him to lose the trust of his employer. With his behaviour, the employee created an extremely bad work atmosphere around him, which had a negative impact on his colleagues' activities and even on their health.

Decision: according to the Supreme Court, the dismissal was lawful.[10] 

Case No. 5: The employee was the subject of several complaints, during the investigation of which it was proved that he had sexually harassed at least two of his female colleagues. The employer argued that disrespectful behaviour, lack of respect for human dignity and abuse of position are incompatible with the ethos of the employer and the Code of Ethics.

Decision: according to the Supreme Court, the ordinary termination based on behaviour was lawful.[11] 

Case No. 6: The employer has given notice of dismissal on the following grounds: the employee is showing incompatible behaviour with his/her manager and immediate colleagues, he/she is not able to integrate into the community, and he/she disturbs the workplace atmosphere. In the lawsuit, the employer specified the reasons as follows:

• - the employee has made statements to discredit managers,
• - had a love affair with a direct subordinate in the workplace, creating situations that disturbed the environment,
• - collected signatures among employees to strengthen his own managerial position.

Decision: according to the Supreme Court, the dismissal was lawful.[12]

2.3 Assessment of the cases

Based on the examined cases, it can be established that, in certain cases, the employee's incompatible behaviour that disturbs the workplace environment can lead to either ordinary or immediate dismissal.

However, it is important to underline that in all the cases examined, the dismissed employee, without exception, was involved in open conflict with colleagues and/or superiors (e.g. insults, negative remarks, criticism, accusations) or was engaged in severely anti-social behaviour (e.g., sexual harassment, discrediting the managers, collecting signatures).

It is therefore questionable whether, in the absence of an explicit conflict, the employee can be dismissed simply because he/she does not fit in or because his/her odd or eccentric behaviour makes the colleagues feel that he/she is incompatible or intimidating.

It is also important that in a labour lawsuit, the employer bears the burden of proving the conduct that gave rise to the dismissal[13], so the outcome of the lawsuit mainly depends on whether the employer can adequately prove the occurrence and circumstances of the conduct alleged against the employee.

While a conflict with an employee, whether written or verbal, can be easily identified and proven, odd, non-average behaviour or personality is difficult to prove, so in the event of the dismissal of an incompatible employee, the clarity and provability of the reasoning may be questionable.

3. Conclusion

Based on the Hungarian judicial practice, employment relationship can be terminated if the employee engages in incompatible behaviour that creates disharmony in the workplace environment. In the cases presented in the article, this was without exception accompanied by open conflict, often vulgar, intolerable expression. This raises the question of whether, in the absence of such explicit manifestations, an employee who is unable to integrate, behaves strangely or even frighteningly can be dismissed. As no general conclusion can be drawn in this respect, in such situations, particular attention should be paid to the clarity of the justification and to the weight of the reasons given.

 

[1] Act I of 2012 on the Labour Code (“L.C.”)

[2] Section 78 (1) of the Labour Code

[3] Section 52 (1) d) of the Labour Code

[4] Section 52 (1) e) of the Labour Code

[5] Decision of the Supreme Court No. Mfv.10582/ 2014/1

[6] Decision of the Supreme Court No. Mfv.10345/ 2014/1

[7] Decision of the Supreme Court No. Mfv.10247/2014/1.

[8] Section 66 (2) of the Labour Code

[9] see in: Lőrincz György: A munkaviszony megszűnése és megszüntetése (HVG-ORAC Lap- és Könyvkiadó Kft. 2017) at Chapter IV. section 6.1.

[10] Decision of the Supreme Court No. Mfv.10.457/ 2015/1.

[11] Judicial decision published under No.: BH 2014.4.120

[12] Judicial decision published under No.: EH2007.1723

[13] Section 64 (2) of the LC: “The burden of proof to verify the authenticity and substantiality of the grounds of the act of termination shall lie with the party making the legal statement.”