The Highest Court issued a significant decision (No. 21 Cdo 1771/2011) in which it assessed the validity of immediate employment termination notice given by an employer in compliance with Section 55 (1b) of the Labour Code due to an employee´s unauthorized use of the Internet during working hours.
The Highest Court also dealt with the question of how an employer may control / monitor the observance of his ban on use of the employer´s production and working tools for the employees´ personal needs in compliance with Section 316 (1) of the Labour Code.
In the concerned case, the employer found the reason for immediate employment termination in the behaviour of the employee, who spent a substantial part of his working hours (almost 13 working days in total from 21 during one month) engaged in non-work activities, i.e. surfing websites, the detailed list of which was submitted by the employer during the judicial procedure.
The employee filled a court petition for the invalidity of his immediate employment termination and claimed that the violation of his duties as an employee cannot be considered as particularly gross pursuant to Section 55 (1b) of the Labour Code. The employee also objected that the employer monitored his use of Internet secretly and in violation of Section 316 (2,3) of the Labour Code.
It is important to mention that pursuant to Section 316 (2) of the Labour Code “the employer must not, without existing justifiable reason supported by the specific nature of the activities of the employer, interfere with the privacy of the employee in the working and joint premises of the employer, by open or secret video or sound monitoring or recording of an employee´s phone calls, inspection of his email communication or mail addressed to the employee.”
The court of the first instance considered the employee´s behaviour (regarding the particularly high number of hours spent on non-working activities) as a particularly gross violation of the employee´s obligations, resulting from legal regulation related to the employee´s work, and rejected the employee´s petition. The court of appeal confirmed the decision of the court of the first instance. The same conclusions were finally made by the Highest Court on the basis of the employee´s review of appeal.
Concerning the way of the employer´s control of the use of the Internet by its employees, the Highest Court repeated that the employer is authorized to control the observance of its ban on use of production and working tool by its employees for personal purposes in compliance with Section 316 (1) of the Labour Code, but only in “a reasonable way” and not arbitrarily (concerning the scope, duration and precision of the control / monitoring etc.)
The Highest Court stated, that in this respective case “the employer´s control did not aim to find out the content of employee´s email messages, SMS or MMS, eventually sent or received by the employee, but aimed only to find out if the employee complied with (and if not, the way how he did not) the employer´s ban on the use of the employer´s computer technology including telecommunication equipment, resulting from the law…”
The Highest Court concluded that: “it is obvious that the control carried out by the employer was aimed only at the protection of the employer´s property. The monitoring of particular websites visited by the employee reveals in a certain way the employee´s privacy (his/her personality) but such findings were not subject of the control but only the findings regarding whether the employee visited websites having no relation to his work …”
This decision is important mainly for the fact that the Highest Court provided a definition as to what is considered as reasonable control by the employer, i.e. control that is in compliance with Section 316 of the Labour Code. The decision of the Highest Court can been seen as a guideline for employers on how to be able to control their employees, without being at risk that they will limit their privacy and end up in breach of the applicable legislation, and how they can ensure that the findings that they make can support a unilateral termination of employment (immediate or with termination notice).