Termination of the employment contract

Based on: Dz. U 1998.21.94 Labor Code;
L. Florek, T. Zieliński, Labor Law, BECK Publishing House, Warsaw 2008

End of employment contract with notice

automatic translation from Polish

it is a unilateral declaration of intent made by one of the parties to the employment relationship that terminates the employment contract at the end of the period indicated in the statement terminating the contract, called the notice period (the notice period is the time after which the employment relationship will end)

This way you can terminate the contract concluded for:

  • trial
  • indefinite period of time
  • Fixed-term

The statement terminating the contract should be submitted in writing (it should be legible and clear). If it is directed by the employer, it should include the reason justifying the dismissal and information about the right to appeal against the dismissal to the labor court. If it does not indicate the notice period, the contract is terminated according to the deadlines specified in the Act, which is as follows: (these are the so-called notice periods)

    ⇒ The notice period for the employment contract concluded for a trial period is:

  • 3 working days if the trial period does not exceed 2 weeks,
  • 1 week if the trial period is longer than 2 weeks,
  • 2 weeks if the trial period is 3 months.

    ⇒ The notice period for an employment contract concluded for an indefinite period and for a definite period depends on the period of employment with the employer and is:

  • 2 weeks, if the employee has been employed for less than 6 months,
  • 1 month, if the employee has been employed for at least 6 months,
  • 3 months, if the employee has been employed for at least 3 years.

!!! An important issue is that the notice periods can be modified only for the benefit of the employee, so they cannot be shorter, but they can be extended. In addition, the Code indicates that if an employee is employed in a position related to material liability for entrusted property, the parties may extend the notice period accordingly.

The Code also provides for a specific situation of shortening the notice period (up to a maximum of 1 month) of contracts concluded for an indefinite period, if the employer terminates the contract due to

  • bankruptcy
  • employee liquidation
  • other reasons not related to the employee

In this case, the employee is entitled to compensation in the amount of remuneration for the remainder of the notice period.

The notice period, i.e. the day on which the notice period ends, must be distinguished from the notice period. The notice period, which includes a week or month (or a multiple thereof), ends on Saturday or the last day of the month, respectively. This means that, for example, the three-month notice period given on August 15 will expire on November 30 - the last day of the third month following notice. The expiry of the three-day period ends on the expiry of the last day, with no account being taken of the date of the declaration of termination.

Notice protection

The most important type of protection is universal protection for an employee employed for an indefinite period. A contract with such an employee can be terminated only:

  • for legitimate reasons
  • after exhausting the procedure for obtaining the position of the appropriate trade union (provided that the employee is represented by such a union)

Regarding the legitimacy of termination, it is an assessment issue not regulated in the Labor Code, also each case should be assessed individually. Numerous case-law on this matter can be helpful.

!!! The justification for terminating an employment contract should be considered not only taking into account the employer's needs (Article 45), but also respecting the interests of the employee diligently and carefully performing employee duties. In particular circumstances, the principles of social coexistence qualifying definitive termination as abuse of law by an employer speak for employee protection.

Judgment SN 28.09 I PKN 398/98

As for union control, she is entitled to: (in other cases the employer is exempted from this obligation)

  • trade union member
  • or to any employee whose defense the union has agreed to

In the above two situations, the union may or may not take a position, while the employer is obliged to carry out specific procedures (notification in writing to the trade union organization together with the reason justifying the termination of the contract; making a decision after 5 days based on the position of the trade union, or after ineffective expiry of this period if the union has not exercised its right). If a trade union has made a reservation within 5 days, the employer is not bound by it, however, it may constitute an important argument for the employee in the event of an appeal to the labor court.

It is worth noting that the union consultation DOES NOT APPLY to the case

    ⇒ liquidation

    ⇒ bankruptcy

    ⇒ employee layoffs if an agreement has been reached between the employer and the company body trade union organization.

In addition to universal protection, there is special protection for specific persons or situations:
  • protection periods - the Code introduces periods during which the right to terminate is excluded or limited:
    • the employer may not terminate the employment contract during the employee's leave, as well as during other justified absence of the employee from work, if the period entitling him to terminate the employment contract without notice has not expired (both leisure and other occasional leaves)
    • an employer may not terminate an employment contract for an employee who is no more than 4 years old until reaching retirement age, if the period of employment allows him to obtain the right to an old-age pension by reaching that age
    • the employer may not terminate or terminate the employment contract during pregnancy or during the maternity leave of the employee (unless there are reasons justifying the termination of the contract without notice through her fault and the trade union organization representing the employee agreed to terminate the contract) / I do not apply above said employee prohibition during a probationary period not exceeding one month
    • the employer may not terminate or terminate the employment contract in the period from the day the employee submits the application for parental leave until the end of that leave. (Termination by the employer of the contract at this time is only allowed in the event of bankruptcy or liquidation of the employer, and when there are reasons justifying the termination of the employment contract without notice due to the fault of the employee.)
    • protection also covers: an adolescent in the period of vocational training, an employee during the period of active military service, an employee whose husband performs basic military service; a person affected by war invalidity or subject to military service.
  • Protection in connection with the functions performed - this is protection resulting from legal acts other than the Labor Code; in most cases protection consists of the employer's obligation to obtain the employee's dismissal from the relevant authority

Claims of employees in the event of unlawful termination of the employment contract by the employer.

Faulty termination may relate to the lack of a justified reason for termination (so-called unjustified termination) or may violate the provisions governing the procedure for terminating the contract, such as:

  • no consultation with a trade union
  • violation of special protection

shorter notice period than required (in this case the contract is terminated effectively, but only after the correct notice period; the employee is entitled to compensation)

  • without keeping the prescribed form
  • without informing the employee correctly about his legal remedies (in this case, we also have the effect of termination, but the employee may obtain a resumption of the default notice period)

!!! Protection always takes place at the employee's request, never ex officio, which means that in order to effectively assert their rights, the employee must lodge an appeal against the termination of the employment contract (within 21 days of receiving the letter terminating the contract). In this case, the law grants him the opportunity to choose - the dismissed employee may request:

  • recover lost job
  • compensation for the unlawful conduct of the employer

The court also has the power to award damages (despite the employee choosing the first of two claims) if the reinstatement is considered contrary to the socio-economic purpose of the law.

The employee claims will be discussed in more detail below:

  • Return to work (declaration of ineffectiveness of termination or return to work)

    If the notice period is still in progress, the labor court decides on the ineffectiveness of notice termination, whereas if the notice period has expired, the court restores the employee to work on previous terms. So we have two types of judgments issued by a labor court in the event of a claim for recovery of a job:

    a decision on the ineffectiveness of termination and a decision on reinstatement to work, where the employment relationship revives without the need to conclude a new contract. In the latter case, you will need to report your readiness to start work immediately. The employee is obliged to submit the above-mentioned statement within 7 days, or after the expiry of this period, if his failure was due to reasons beyond his control. (!!! The employee is required to prove that the deadline was exceeded for reasons beyond his control if he claims that the employer should re-employ him despite the expiry of seven days. Judgment SN 2008.01.14 IIPK 104/07)

    It should be remembered that an employee who has been restored to work is entitled to remuneration for remaining unemployed (only if he has taken up work as a result of the restoration). The amount of remuneration:

    • employees under special protection: for all the time they are out of work
    • other employees icy:
    • if the notice period is less than 3 months -> remuneration is due for a period not longer than 2 months
    • if the notice period is 3 months -> the salary is due for at most 1 month of being out of work
    • The period of unemployment is included in the employee's employment period.
  • Compensation.
  • I am entitled to an employee if he does not want to regain or keep his current job, or the court finds it pointless or impossible. He is entitled to remuneration for the period from 2 weeks to 3 months, in any case not lower than the remuneration for the notice period. There is a case where the employee is ONLY entitled to compensation, without being able to apply for reinstatement. This happens when the employer prematurely terminated the term contract in violation of the provisions of termination of this type of contract (this refers to contracts for a probationary period, for a definite period as well as for the time of performing a specific job) or when it would be impossible or impossible to return the employee to the previous position . The period for which the employee obtained compensation is added to the overall seniority.

    * Termination of employment as a result of termination of working conditions or pay (termination notice) - in this case, we apply the same rules for terminating an employment contract with some modifications, which I will provide below: Same as for definitive termination, in an agreement concluded for an indefinite period, employer must meet two conditions:

    • state the reason justifying the change in working conditions or pay (unjustified in this case may be new conditions not adapted to the employee's qualifications, or unacceptable, de facto aimed at terminating the contract)
    • carry out the procedure notifying trade unions, transferring the intention of deterioration to the employee of the current conditions and provide new conditions - the further procedure is identical to the final notice.

    In the event of termination of working conditions or pay, the scope of special protection will be narrower, in cases where the regulations exceptionally allow such termination.

    Employee claims: they are the same as for the final termination of the contract, however, the effects depend on the employee's behavior. He may because:

    • refuse to accept new conditions, allow the employment contract to be terminated upon the expiry of the notice period, without appeal against the faulty notice
    • refuse to accept new conditions, appeal against faulty notice demanding to be considered ineffective or to be reinstated
    • appeal against a faulty notice without refusing new conditions; in such a case, the post-notice period continues under the changed conditions, and the employee may demand the restoration of previous working conditions (the cancellation is not tantamount to refusal of new conditions)
    • refuse to accept the proposed conditions, demanding compensation

    ** Exemptions for reasons not pertaining to employees

    these are dismissals for reasons attributable to the employer (economic and organizational reasons leading to the reduction of employment or liquidation of some positions) regulated by the Act of 13.03.2003 on special rules for terminating employment relationships with employees for reasons not related to employees. They can be both individual and group, with a special mode of redundancy for the latter (the employer notifies the company trade union organizations and the poviat labor office of the reasons for the dismissals, the number of employees etc; maximum 20 days after being notified, the employer and unions should strive to conclude an agreement , specifying the manner in which dismissals are carried out and the employer's obligations; in the event of disagreement, the employer creates dismissal regulations, and in the absence of establishment trade union organizations, the intention to dismiss and issue regulations is consulted with employee representatives; the employer notifies the labor office again, after which it is possible to terminate , however, the termination of the employment relationship may take place only after 30 days from this notification)

    !!! The labor court cannot assess the legitimacy of organizational and economic measures taken by the employer. However, consideration of the justification for termination cannot be limited to this statement.

    In order to defend the legitimacy of this activity, the employer making the dismissal for economic reasons concerning him should demonstrate that he has applied objective, fair criteria for selecting the employee for dismissal and took into account all employees affected by the reasons forcing him to terminate the employment relationship.

    If rules of conduct have been established, in particular criteria for selecting employees for dismissal, they should be used, and in any case deviations from the adopted rules require very convincing justification.

    Judgment of the Supreme Court 2006.08.08 IPK 50/06

    It is worth noting that p With this type of dismissal, the legislator lifts restrictions related to special protection, with a few exceptions, which may be terminated in terms of work or pay, while providing a compensatory supplement.

    With individual dismissals, the legislator introduces the possibility of an objection by a trade union within 14 days, which in this case prevents the termination of employment, and in the event of impossibility to continue employing, allows the termination of pay or work conditions.

    EVERY employee dismissed for unrelated reasons, have the right to CLEARANCE (it is unconditional, even after re-employment with the same employer)

    It amounts to:

    • one month's remuneration - if the employee has worked for a given employer for up to 2 years
    • two-month salary - if an employee has worked for a given employer for 2 to 8 years
    • three months' salary - if an employee has worked for a given employer for more than 8 years

    In any case, the amount of remuneration may not exceed 15 times the minimum remuneration applicable on the date of termination of employment.

    In the case of group redundancies, the employer is obliged to re-employ the employee with whom he terminated the employment contract if he employs persons in the same professional group. Such an employee has one year (from contract termination) to report his intention to return to work, and his employment should take place within 15 months of that day. Otherwise, he has a claim against such employer for an employment relationship.

    1. Termination of the employment contract
    2. Termination of the employment contract without notice
    3. Expiration of employment relationship
    4. Termination of the employment contract by agreement of the parties