Goodwill Is Not a Job Position

In its decision under file no. 21 Cdo 3273/2024 of 31 March 2026, the Supreme Court dealt with a situation that is far from unusual in practice: an employee permanently loses the medical fitness required to perform the agreed work, while at the same time a dispute arises regarding the validity of the termination of employment and the related claims. The key issue was the scope of the employer’s obligation to transfer the employee to other work pursuant to Section 41 of the Labour Code, and whether a „failure“ to do so could establish or maintain an entitlement to wage compensation under Section 69 of the Labour Code.

Brief Summary of the Facts

Factually, the case concerned an employee who worked as a driver transporting injured and ill patients, as well as women in labour. After an extraordinary occupational health examination, a medical assessment stated his long-term loss of the medical fitness required to perform his agreed work. Later that same day, his superior discussed possible alternatives for his continued employment within the organisation, including duties related to fleet administration or other forms of work. The employee rejected those options, left the workplace, and subsequently stopped attending work.

The employer then terminated the employment relationship with immediate effect, citing unexcused absence. The employee responded with a letter stating that he insisted on being further employed, and in the proceedings that followed, the immediate termination was ultimately held invalid by a final court decision. The employment relationship came to an end only later, by notice under Section 52(e) of the Labour Code, on the grounds of long-term loss of medical fitness. The employee then sought wage compensation for the period during which the dispute over the invalid immediate termination was pending, arguing that the claim arose because the employer had breached its obligation to transfer him to other suitable work.

The extent of the obligation to transfer an employee to another position

The court of first instance ruled in the employee’s favour. Among other things, it found that once the employee’s medical unfitness had been established, the employer was obliged under Section 41 of the Labour Code to transfer him to other suitable work, and that roles such as fleet administration or office-based duties would have been medically suitable.

The appellate court took a different view. After taking further evidence, it arrived at a factual conclusion that proved decisive: the employer did not in fact have any vacant position corresponding to the employee’s state of health and qualifications. According to the appellate court, the proposed “fleet manager” role was not an existing position at all. Rather, it was only an idea that certain tasks might be reassigned and that such a role could perhaps be created later, subject to a further internal decision. On that basis, the appellate court dismissed the claim, and the Supreme Court upheld that conclusion.

What makes the Supreme Court’s judgment particularly significant is the way it defines the employer’s duty to transfer an employee to other work. In the Court’s view, Section 41 applies only to other suitable work that the employer has available. That obligation cannot be stretched so far as to require the employer to create a new job, design a new role, or reorganise its internal structure simply to make room for the employee. Put plainly, if no suitable alternative job genuinely exists, the legal consequences follow from that objective absence of suitable work — not from any supposed duty on the employer’s part to establish one.

Practical implications

The judgment has clear practical significance: in cases involving long-term medical unfitness and (typically) a concurrent dispute over the validity of the termination of employment and related wage compensation, the key question will be whether the employer had a real, existing suitable position to which the employee could have been transferred. It is precisely here that two distinct levels are often confused in practice and should be clearly distinguished: On the one hand, there is a genuinely existing vacant position. On the other, there is merely an idea, or a well-meant suggestion along the lines of “we could probably find something for you” — for example by transfer of responsibilities, creating a new role, or arranging some temporary solution. The Supreme Court makes clear that the latter is legally a different matter. It may well reflect good HR practice, but it is not a legal duty, nor does it require the employer to establish a new position.

Overall, the decision provides a clear answer to a question that repeatedly arises in employment practice: the duty to transfer an employee to other work is not a duty to create a new role for them. From an HR perspective, creative solutions and adjusted roles may of course be sensible and desirable. But for the purposes of Section 41 of the Labour Code, an employer is not required to take such steps under threat of legal consequences simply because, in hindsight, “something could have been worked out.” What is decisive is whether suitable work actually existed and was available.