An employer cannot create redundancy by artificially filling a position with another worker

The District Court in Tábor recently heard a case that fundamentally changes the perspective on an employer's ability to terminate employment for organizational reasons. The case reveals that an employer cannot simply circumvent the law by creating a reason for an employee's redundancy themselves.

At the heart of the dispute was an employee working as a part-time editor for a municipal periodical. The employer initially served him with a notice of termination for breach of work duties. However, the employee reacted immediately – on the very same day, he formally declared in writing that he considered the termination invalid and insisted on continued employment. He demanded that he continue to be assigned work.

However, the employer did not respond to this notification. On the contrary – they informed the employee in writing that they would only assign him work until the end of the notice period. And crucially: even before the court ruled on the validity of the first termination, the employer hired a completely new employee for the same position, with identical job responsibilities and the same working hours. This new employment contract was, moreover, for an indefinite period.

A second termination as a safeguard?

The court of first instance ultimately declared the first termination invalid, and the appellate court upheld this decision. However, even before this decision became legally binding, the employer made a surprising move – they served the employee with a second notice of termination, this time for redundancy under Section 52(c) of the Labor Code.

The employer's argument was as follows: after the first notice period expired, the employee stopped performing work, his position was filled by another employee, and therefore the original employee became redundant. The employer even admitted that it was a matter of "procedural caution" – they wanted to ensure that the employment of the problematic employee would indeed end.

However, the employee defended himself. He pointed out that he did not stop performing work voluntarily – its performance was prevented by the employer. He repeatedly requested to be assigned work, even appearing in person at the workplace, but was told that his return was not possible. According to him, it was not a legitimate organizational change, but a deliberate creation of a reason for termination.

Key Court Findings

The court sided with the employee and declared the second termination invalid. In its reasoning, it highlighted several fundamental points:

• The need for the work had not changed – the employer still needed one part-time editor with the same job responsibilities. No actual organizational change had occurred.
• Simple replacement of an employee is not an organizational change – replacing one worker with another in the same position does not constitute a reason for redundancy termination.
• The employer created the redundancy themselves – by hiring a new employee for an already occupied position, they artificially created a situation where one of them would have to be redundant. However, this is not redundancy in the legal sense.
• The employer's knowledge is decisive – the employer was aware of the lawsuit filed challenging the validity of the first termination notice, yet hired a new employee for an indefinite period.

The court explicitly referred to the jurisprudence of the Supreme Court (file no. 21 Cdo 2204/2003), according to which a decision on organizational change cannot be recognized if the employer pursued objectives other than genuine reorganization from the outset. In this case, the court found it was merely a "pretense" of an organizational measure.

The comparison used by the court is also interesting. Professional literature states that an employee returning from maternity or parental leave cannot be made redundant simply because their position has been filled. If an employer needs a replacement, they should enter into a fixed-term employment contract. The same logic applies here – the employer could not expect to simply choose which of the two employees in the same position to dismiss.

For entrepreneurs and employers, this decision provides a clear lesson: the law cannot be circumvented by creating artificial redundancy. If an employee states they insist on continued employment and challenges the termination notice in court, this situation must be taken into account. Hiring a new employee for an indefinite period for the same position can put the employer in a difficult situation where they cannot terminate the employment relationship with either of them.

In this case, the employer also failed with the argument that relations between the parties were disrupted and that they had been long-term dissatisfied with the employee's performance. Such reasons alone do not constitute grounds for termination under Section 52 (c) of the Labor Code and cannot legitimize the deliberate creation of conditions for redundancy.

Source: District Court in Tábor