Employment and Labour Law: 2nd edition

9.1 Prohibition on discrimination

Equality in employment is governed by the LC. The law forbids any discrimination, privileges or restrictions on the rights and duties, based on criteria unconnected to the employment relationship. The LC develops further the common Constitutional principle for prohibition of discrimination (art 6 para 2) and is related to art 4 para 1 of the Discrimination Protection Act, as well as with the texts of the Convention 111/1958 of the International Labour Organisation.

Bulgarian employment legislation forbids discrimination on the grounds of ethnicity, origin, gender, sexual orientation, race, skin colour, age, political and religious convictions, affiliation to trade union and other public organisations and movements, family and property status, existence of mental or physical disabilities, as well as differences in the contract term and the duration of working time.

9.2 Direct and indirect discrimination

The LC forbids direct as well as indirect discrimination. EU law plays an important role in this area, starting with the Treaties of Rome 1957, continuing with art 2(1) of Directive 76/207/EEC; arts 5(1) and 6 of Directive 87/378/EEC; Directive 2000/43/EC.

Indirect discrimination is legally defined in art 4(3) of the Discrimination Protection Act and covers an employee being placed in a less favourable position due to the abovementioned circumstances resulting in factual inequality between employees.

10. DISCIPLINE AND TERMINATION

10.1 Labour discipline and discipline sanctions

The guilty non-performance of employment duties, set out in law or in the Internal Rules of an enterprise, constitute a breach of employment discipline. The employer is entitled to levy specific, legally fixed sanctions on the employee in breach, notwithstanding the economic, or administrative penalty.

The LC describes the most widespread breaches of work discipline as follows:

• reporting for work late, leaving early, being absent from work or failing to utilise working time efficiently;
• reporting of the factory or office worker for work in a state which prevents him from fulfilling the tasks assigned to him;
• non-execution of the work assigned, non-observance of the technical and technological rules;
• production of inferior quality output;
• non-observance of the rules for health and safety at work;
• non-execution of the lawful orders of the employer;
• abusing the confidence and damaging the reputation of the enterprise, as well as disclosure of data which is confidential in respect of the enterprise;
• damaging the employer’s property and squandering of prime and raw materials, energy and other resources; and
• non-fulfilment of other labour duties provided for by laws and other statutory instruments, by the internal works rules, the collective agreement or established upon the formation of the employment relationship.

The employer is entitled to levy a sanction, as specified by law, when the employee commits a breach of work discipline. The sanctions, listed in the LC, are: reprimand; warning of dismissal; or dismissal.

When determining the sanction, consideration shall be given to the gravity of the breach, the circumstances of the commission, as well as the conduct of the employee.

Only one disciplinary sanction may be imposed for one breach of work discipline.

For the most serious breaches of discipline the LC envisages the employer dismissing the employee. A dismissal for breach of discipline may be imposed after:

• reporting for work late or leaving early on three occasions, each of not less than one hour, within one calendar month;
• being absent from work over the course of two consecutive working days;
• systematic breaches of work discipline;
• abusing the employer’s confidence or disclosing data which is confidential in respect of the employer;
• inflicting detriment on members of the public by factory or office workers in distributive trade and services through overcharging, shortweighting, or supplying goods or services of quality inferior to the stated quality;
• participation in games of chance through telecommunication facilities of the

enterprise, and the costs incurred shall be restored in full amount; or • other grave breaches of work discipline.

10.2 Procedure for imposing a sanction

Disciplinary sanctions should be imposed by the employer, a person designated by him or by an authority empowered by law.

Before imposing a disciplinary sanction, the employer is obliged to give the employee a hearing, or to accept their written explanations and gather and assess any relevant evidence. Where the employer has failed to give the employee a hearing or to accept their written explanations before imposing the sanction, the court shall revoke the disciplinary sanction without examining the case on the merits.

Disciplinary sanctions shall be imposed within two months after detection of the breach and not later than one year after its commission. Once those terms have expired, the possibility of a sanction is precluded.

For a breach of discipline which also constitutes a criminal offence or an administrative violation of the work assigned and established by an effective sentence or a penalty decree, the time limits under the foregoing paragraph shall begin to run as from the effective date of the sentence or penalty decree.

A disciplinary sanction shall be imposed by a reasoned order in writing, which shall specify some requisites:

• the identity of the offender;
• the breach;
• the date of commission;
• the sanction; and
• the provision of law pursuant to which the sanction is imposed.

The disciplinary sanction order shall be served on the employee upon signed acknowledgement of service, noting the date of service. Should it be impossible to serve the order on the employee, the employer shall send the order to the worker by registered mail with advice of delivery.

The disciplinary sanction shall be considered imposed as from the day of service of the order on the employee or as from the day of receipt of the order, where sent by registered mail with advice of delivery.

10.3 Compensation

In some mandatory cases, the employer may owe compensation to the employee, for example:

• for non admission to work;
• for suspension from work;
• for business trips;
• by work relocation to another settlement;
• upon occupational rehabilitation;
• in an emergency;
• upon employee’s lawful refusal to execute work;
• for unobserved notice period; or
• for termination of employment relationship without notice.

10.4 Termination of the employment contract

According to Bulgarian employment legislation, there are cirsumstances when an
employment agreement should be terminated:
A without notice by either party to an employment relationship;
B only by the employee upon a preliminary written notice;

only by the employer upon a preliminary written notice.

A. An employment contract shall be terminated without either party being obliged to give notice to the other party:

• by mutual consent of the parties, expressed in writing. The party who has been approached with the offer shall be obliged to take a stand on the offer and to inform the other party within seven days after receipt of the offer. Upon failure to do so, rejection of the offer shall be presumed;
• where the dismissal of an employee is pronounced unlawful by the court, or where the employee is reinstated to his previous work by the court, but that employee fails to report to work within the time limit under the law;
• upon expiry of the agreed term;
• by the completion of the work as specified;
• upon return to work of the replaced employee;
• where the position has been designated for occupation by a pregnant woman of an occupational rehabilitee, and an applicant who is entitled to occupy the position appears;
• upon commencement of work by an employee who has been elected or who has won a competitive examination;
• if the employee is unable to execute the work assigned by reason of illness which has led to permanent loss of working capacity (disablement), or because of health contraindications on the basis of a conclusion of the medical expert board for working capacity certification. In such case, termination shall be inadmissible if the employer can provide another work suitable to the state of health of the employee and the employee agrees to take it;
• upon the death of the person wherewith employee has concluded the employment contract intuitu personae;
• upon the death of the employee; and
  • owing to the designation of the position for occupation by a civil servant.
  

B. An employee may terminate the employment contract by giving the employer written notice.

The period of notice of termination of an employment contract of an indefinite duration shall be 30 days, unless the parties have agreed on a longer period, but not longer than three months.

The period of notice of termination of a fixed-term employment contract shall be three months, but not more than the remainder of the term of the contract.

The notice period shall begin to run on the day after the receipt of the notice. A notice may be withdrawn if the employee communicates this fact before or simultaneously with the receipt of the notice. With the consent of the employer, notice may be withdrawn before expiry of the notice period.

C. An employee may terminate the employment contract in writing without notice, where:

• the worker is unable to execute the work assigned by reason of illness and the employer fails to provide the worker with another suitable work conforming to the prescription of the health authorities;
• the employer delays the payment of the labour remuneration or of a benefit under this Code or under social insurance;
• the employer changes the place or nature of work or the agreed labour remuneration, except in the cases where the employer has the right to make such changes, as well as where the employer fails to fulfil other obligations agreed by the employment contract or by the collective agreement, or established by a statutory instrument;
• as a result of a change effected under article 123(1), the working conditions under the new employer deteriorate substantially;
• transfers to a salaried elective office or begins research work on the basis of a competitive examination;
• is conscripted. Where the conscriptee is deferred or exempted from conscription, at the ir request their employment contract shall be considered not terminated if the said worker reports to retake the work within one month after the deferral or exemption, but not later than three months after leaving work;
• pursues studies as a full-time student at an educational establishment, or enrolls in a full-time doctoral degree course;
• works as a replacement of an absent factory or office worker and transfers to another work for an indefinite duration;
• is reinstated to work according to the established procedure by reason of pronouncement of the dismissal as wrongful, in order to take the work where the said worker has been reinstated; and
• enters the civil service.

D. An employer may terminate the employment contract by giving the employee written notice observing the notice in the following cases:

• upon closure of the enterprise;
• upon closure of part of the enterprise or downsizing of personnel;
• upon reduction in the volume of work;
• upon idling for more than 15 working days;
• where the factory or office worker lacks the capacity for efficient execution of the work;
• where the factory or office worker does not possess the educational level or professional qualification required for the work executed;
• upon refusal of the factory or office worker to follow the enterprise or a division of it, in which the worker works, when the said enterprise or division relocates to another nucleated settlement or locality;
• where the position occupied by the factory or office worker must be vacated for reinstatement of a wrongfully dismissed factory or office worker, who previously occupied the same position;
• for vacation of the occupied position owing to the return of a factory or office worker who has been granted an early discharge or who has been deferred from conscription and who previously occupied the same position;
• upon acquisition of entitlement to contributory-service and retirement-age pension, and applicable to professors, associate professors and senior research associates first and second class and doctors of sciences, upon attainment of the age of 65 years;
• upon change of the requirements for execution of the position, if the factory or office worker does not satisfy the said requirements; and
• when performance of the employment contract is objectively impossible.