The protection in the event of dismissal of workers or employees employed under an employment relationship is laid down in Article 333 of the Labour Code (KT). According to Article 333(1) of the KT in the cases under Article 328(1), item 2 (in the event of closure of a part of the undertaking or lay-offs); item 3 (in the event of decline in workload); item 5 (if the worker or employee does not have the qualities to perform the work effectively); item 11 (if the requirements for the position change and the worker or employee does not satisfy them) and Article 330(2), item 6 of the KT (dismissal on disciplinary grounds), the employer may dismiss a worker or employee only with the advance authorisation of the labour inspectorate on a case-by-case basis:
- a worker or an employee who is a mother of a child under the age of three;
- a worker or an employee transferred to a more appropriate job for reasons of health;
- a worker or an employee suffering from an illness as defined in a decree of the Minister of Health (Decree No 5/20.02.1987 on illnesses entitling the employees suffering from them to specific protection in accordance with Article 333(1) of the KT);
- a worker or an employee who has commenced the use of an approved leave;
- a worker or an employee who has been elected to represent the workers and employees in accordance with the procedure laid down in Article 7(2) and Article 7a of the KT for the duration of the appointment;
- a worker or an employee who is a member of a special negotiating body, a European Works Council or a representative body in a European company or a European Cooperative Society for the duration of the appointment.
According to Article 1(1) of Decree No 5/20.02.1987 on illnesses entitling the employees suffering from them to specific protection in accordance with Article 333(1) of the KT protection against dismissal is to be granted to workers suffering from one of the following illnesses:
- ischaemic heart disease;
- active form of tuberculosis;
- oncological disease;
- occupational disease;
- mental illness;
- diabetes.
The undertaking collects preliminary information from the workers who are designated for dismissal whether they suffer from any of the illnesses listed in Article 333(1) of Decree No 5/20.02.1987.
The workers suffering from the illnesses listed above are required to present to the undertaking, upon request, medical documents (a discharge summary, a medical certificate, etc.) from the healthcare and rehabilitation facilities, where they are treated or are registered for regular medical check-up. The undertaking submits the received medical documents to the relevant labour expert medical committee (TELK) for its opinion.
The undertaking submits a written request for authorisation to the relevant Labour Inspectorate Directorate (LID) for each worker or employee designated for dismissal, and in the cases referred to in items 2 and 3 of Article 333(1) of the Labour Code, the opinion of the labour expert medical committee is also taken into account prior to the dismissal.
According to Article 333(3) of the KT, in the cases referred to in Article 328(1)(2) (in the event of closure of a part of the undertaking or lay-offs), item 3 (in the event of decline in workload), item 5 (if the worker or employee does not have the qualities to perform the work effectively); item 11 (if the requirements for the position change and the worker or employee does not satisfy them and Article 330(2), item 6 of the KT (dismissal on disciplinary grounds), the employer may dismiss a worker or an employee who is a member of the management of a trade union, a territorial, sectoral or national elected governing body during the period of appointment in the relevant trade union position and up to 6 months after his or her release, only with the prior consent of a trade union body determined by decision of the central management of that trade union. Item 6 of § 1 of the Supplementary Provisions of the KT stipulates that “trade union management” means the chairperson and the secretary of the trade union.
Under Article 333(4) of the Kt, where this is provided for in the collective agreement, an employer may dismiss an employee on the grounds of lay-offs or decreased workload, subject to the prior consent of the relevant trade union body in the undertaking. The following is required in order to provide protection under Article 333(4) of the KT: an effective collective agreement which expressly confers this protection and which applies to the workers or employees — members of the trade union — party to the contract or those who have acceded to the contract pursuant to Article 57(2) of the KT.
By virtue of that protection the relevant trade union body in the undertaking has to give its prior consent. In each individual case, that body has to be expressly mentioned in the collective agreement.
A request for dismissal is submitted by the employer to the relevant trade union body; the request must be in writing and refer to any worker or employee whose dismissal is undertaken. The request must be reasoned, i.e. it must state the circumstances and the reasons why the dismissal of the respective worker or employee is requested, as well as the grounds on which his/her dismissal is sought. It must be presented before the dismissal.
The competent authority examines and discusses the request submitted to it and responds in writing to the employer. Its reply must be explicit and contain, depending on the circumstances, authorisation to proceed with the dismissal, or refusal on a case-by-case basis. The competent authority delivers its own opinion on the basis of the information regarding the individual case. Its response is in the form of an authorisation or refusal and is definitive and does not require reasoning. It may not be further appealed before a superior authority or before any state authority: judicial, administrative etc.
Protection is provided to pregnant workers and employees in the event of dismissal, as Article 333(5) of the KT provides that a pregnant worker or employee, as well as a worker and an employee at an advanced stage of in-vitro treatment, may be dismissed with notice only on the basis of Article 328(1), items 1, 7, 8 and 12 of the KT, as well as without notice on the basis of Article 330(1) and (2), item 6 of the KT. The protection becomes effective from the moment of notification to the employer and certification of the pregnancy.
In the event of dismissal that protection includes a prohibition to dismiss the pregnant worker or employee with notice, except in the following cases listed exhaustively in the KT: closure of the undertaking; refusal of the pregnant worker or employee to follow the undertaking or the division in which she works when it relocates to another settlement or locality; where the pregnant worker occupies a post in which an unlawfully dismissed employee who previously occupied the same post has been reinstated; where it is objectively impossible to perform the contract of employment.
The protection also includes a prohibition to dismiss a pregnant worker without prior notice, except in the following cases, also listed in the KT: when the pregnant woman is detained for execution of a sentence or has been dismissed on disciplinary grounds. The dismissal on disciplinary grounds requires advance authorisation from the Labour Inspectorate.
Pursuant to Article 333(6) of the KT, a worker or an employee who uses leave for pregnancy, childbirth and adoption (i.e. during a leave of 410 days under Article 163 of the KT, of which 45 days before childbirth) may be dismissed only on the basis of Article 328(1)(1) of the KT – in the event of closure of the undertaking.
The protective procedure under Article 333 of the KT is a precondition which the employer is required to comply with when dismissing the workers or employees referred to in the protective provision of Article 333 of the KT. Advance dismissal authorisation means consent to, or refusal by a competent state or trade union body to authorise the dismissal. Their powers are precisely laid down in a legal provision and the law precludes their extension. That authority is the relevant regional labour inspectorate for the cases referred to in Article 333(1) and (5) of the KT and the relevant trade union body for the cases under Article 333(3) and (4) of the KT.
Where the dismissal requires the prior consent of the relevant LID or of a trade union body and such consent has not been requested or given before the dismissal, the dismissal is unlawful. The protection under Article 333 of the KT becomes applicable at the time of serving the dismissal order.
The relevant LID has territorial jurisdiction for the territory where the undertaking has its registered address.
A written request is filed to the Director of the relevant LID that has territorial jurisdiction. The request must meet the following requirements: it is individual for each worker or employee; it states the grounds on which the dismissal is to be effected and the grounds on which the worker or employee is protected in the event of dismissal; it is reasoned – it states the circumstances and the grounds on which the dismissal is requested.
The request is accompanied by evidence supporting the justification of the dismissal depending on the grounds, such as in the case of closure of a part of the undertaking or lay-offs – the old and the new establishment plan; in the case of dismissal on disciplinary grounds – documents relating to the dismissal on disciplinary grounds, etc.
Following the submission of the request for authorisation to dismiss a worker or an employee, the relevant LID issues, within 7 days, a written authorisation (or refusal) to terminate the employment relationship.
Both the authorisation and the refusal to grant such authorisation is subject to the independent assessment by the control authority which it makes itself in compliance with the law. There is no obligation laid down in the legislation to state the reasons for the granted refusal or authorisation for dismissal.
The authorisation under Article 333 of the KT or the refusal to grant it does not constitute an individual administrative act and the Bulgarian legislation in force does not provide for a procedure for its appeal. It is final and not subject to review.
Reference: Article 333 of the KT; Article 344(3) of the KT.