Order No. RD-01-124 / 13.03.2020 of the Minister of Health imposed a suspension of visiting of amusement and gaming halls, bars, restaurants, fast food establishments, drinking establishments, coffee shops, shopping malls and cinemas, theaters, concerts, museums, conferences, sports and SPA centers, gyms and etc. as a measure against the pandemic of COVID-19. Although all the commercial activities which are not specificaly mentioned above continued to operate in strict compliance with the sanitary and hygiene requirements, this created uncertainty in the trade and endangered tens of thousands of jobs.
The emergency situation deprives employers of the opportunity to perform their business activity and the workers are forced to cease their work for a long period of time. Article 322 (1) i.12 of the Labour Code allows the employer to terminate the employment contract by giving a written notice within the time limits under Article 326 of the Labour Code to the employee in case of objective impossibility of implementation of the employment contract.
What are the consequences for the employees and the employer in this case?
In the event that the employer has met the obligatory term for giving the written notice of termination of the employment contract to the employee, then compensation from the employer shall not be due, since the exemption under Article 328 (1) i.12 of the Labour Code is not one of the hypotheses for receiving such compensation under Article 222 (1) of the Labor Code. If there is an objective inability to implement an employment contract there is no fault, in which case liability should not be imputed.
One shall be entitled to unemployment benefit for whom contributions to the Unemployment Fund have been paid or payable for at least 12 months during the last 18 months prior to the termination of the contract and who is registered as unemployed with the Employment Agency; have not acquired the right to an old-age and retirement pension in the Republic of Bulgaria or an old-age pension in another country; do not perform work activity for which they are subject to compulsory social security and etc.
What should the employer look for?
In the case of termination of multiple employment contracts under art.328 (1) i.12 of the Labour Code by the employer, a “check” should be performed if the employer shall be liable under the hypothesis of “mass discharge.”
“Mass discharge” is the discharge on one or more grounds, carried out by the decision of the employer and by reasons, which are not related to the definite worker or employee, where the number of the discharged is at least 10 in enterprises where the number of personnel hired in the month preceding the mass discharge has been more than 20 and less than 100 workers and employees for a period of 30 days; at least 10 percent of the number of workers and employees in enterprises where the number of hired in the month preceding the mass discharge has been at least 100, but not more than 300 workers and employees for a period of 30 days; at least 30 in enterprises where the number of the hired in the month preceding the mass discharge has been at least 300 or more workers and employees for a period of 30 days.
While performing the “mass discharge” procedure, the employer is obliged to comply with the provisions of Article 130a of the Labour Code. Where the employer intends to undertake a mass discharge, he shall be obliged to start consultations with the representatives of the trade union organizations and of workers and employees under Art. 7, Para. 2 Labour Code in due time, but not later than 45 days before undertaking them, and to make efforts to achieve an agreement with them in order to avoid or restrict the collective redundancies and to ease the consequences of them. The employer is obliged to provide written information before the beginning of the consultations on the reasons for the planned discharges; the number of employees to be discharged and the main economic activities, groups of professions and posts to which they relate; the number of employees of the main economic activities, occupational groups and positions in the enterprise; the specific indicators for the application of the selection criteria under Art. 329 the employees to be discharged; the period during which the redundancies will take place; benefits due from the mass discharge and etc. After the information has been provided, within three working days the employer is obliged to send a copy of the information to the relevant branch of the Employment Agency. Otherwise, the employer is threatened with a pecuniary sanction or a fine in the amount of 1500 to 5000 levs, and the guilty official – with a fine of 250 to 1000 levs, for each individual violation.
Apart from the above, the employer must notify in writing the relevant branch of the Employment Agency of the planned “mass discharge” 30 days before it. An employer who performed a “mass discharge” without notice and before the expiry of the above deadline is fined or fined 200 levs for each laid-off person.
This statement reflects the principal provisions in the current legislation and the amendments, dynamic in the state of emergency, expected by the date of adoption of the Law on Measures and Actions during the State of Emergency, announced by a decision of the National Assembly on 13.03.2020. It is not tailored to the specific situation, does not constitute legal advice, does not claim to be exhaustive and will need to be supplemented in the light of subsequent changes.
— to iclg.com