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June 2024

Occupational disease

In the judgment of April 9, 2024, the Provincial Administrative Court in Kraków (III SA/Kr 1750/23) recalled that the concept of "occupational disease" is therefore a legal concept with a statutory definition. The above-mentioned provision states that in order to recognize a disease as an occupational disease, it is necessary for the diagnosed disease to be included in the list of occupational diseases and for there to be a cause-and-effect relationship between the symptoms of the disease and the conditions in which the employee performed work, established unquestionably or with a high probability. Therefore, an occupational disease as a legal concept refers to an illness that has a cause-and-effect relationship with the work performed.

May 2024

Liability for property entrusted to an employee

Liability for property entrusted to an employee by the employer is regulated in Articles 124-127 of the Labor Code. For liability to arise, the property must be entrusted to the employee with the obligation to return it. The employee is responsible for the full value of the property entrusted with the obligation to return it. To hold an employee liable, it is enough to indicate that there are quantitative deficiencies in the property. In the event of damage to property, the employee bears limited liability as long as he proves that he caused the damage unintentionally. The employer must prove only the fact that the damage occurred and the fact that property was entrusted to the employee. The employee may free himself from liability by proving that the damage was caused by the employer's failure to provide appropriate conditions to secure the property or for reasons beyond the employee's control, which the defendant employee, in accordance with the case law of the Supreme Court, must substantiate to a high degree. Pursuant to Art. 125 of the Labor Code, it is possible to entrust property to several employees. The entrustment is made on the basis of a contract drawn up in writing under pain of nullity. The contract should specify, in fractional parts, the responsibility of each employee. Each employee is liable for the damage up to the amount of his or her own share, unless it is proven that only some of the employees are liable for the damage. The implementing regulations specify when a contract can be concluded - it depends on the number of employees and the shift work system.

April 2024

Employee's liability for damage caused to the employer

The concept and scope of responsibility

Employee liability is all personal and property consequences provided for by law due to non-performance or improper performance of employee duties. It is divided into organizational and material liability, which includes liability for damage caused to the employer and liability for property entrusted to the employee by the employer. Material liability occurs when an employee, as a result of non-performance or improper performance of employee duties, causes damage to the employer through his or her fault. The grounds for liability are the fault and illegality (non-performance or improper performance of employee duties) of the employee's behavior. The employee is liable within the limits of the actual loss, and only for the normal consequences of the act or omission that resulted in the damage. The Labor Code also provides two grounds for limiting liability. First, liability is limited when the employer contributed to its creation. The employee also does not bear any risk related to the employer's activities. The burden of proof to prove liability rests with the employer. If several people contributed to causing the damage, they are liable for part of the damage depending on their contribution and the degree of fault. If it is not possible to determine the degree of fault and contribution of individual employees to the damage, they are liable in equal parts.

Amount of compensation

The amount of compensation depends on the type of fault. In the case of willful misconduct, which, according to the case law of the Supreme Court, occurs when an employee intends to cause damage, the employee is liable to the full amount. The maximum amount of remuneration cannot exceed three times the monthly salary. The employer is liable to a third party to whom the employee has caused damage through his or her conduct. If the employer repairs the damage, it has a recourse claim against the employee. It is possible to repair the damage by way of an agreement between the employer and the employee, under which, taking into account all the circumstances of the case, in particular the degree of the employee's fault and his attitude to his employment duties, the amount of compensation may be reduced. As a side note, it is also worth adding that there is unanimity in the case law as to the issue of concluding contractual clauses allowing for the payment of a specific sum of money to repair the damage. In this case, the employer would bypass the statutory requirement to examine the degree of guilt and the circumstances of the case. A similar position was also taken by case law regarding bills of exchange issued in the event of damage caused by an employee.



March 2024

Basics of the remote work principle specified in the Labor Code

Just 4 years ago, remote work, although practiced, was a kind of employee exotic. The pandemic experience has led to a sharp increase in people working remotely. Currently, it is practically equivalent to the traditional form of work. The legislator, who regulated remote work in an extensive amendment to the Labor Code, could not be passive in this situation. The amendment entered into force in July 2023.

Pursuant to the new Art. 67 18 work may be performed entirely or partially in a place indicated by the employee and agreed upon each time with the employer, including the employee's home address, in particular using means of direct distance communication (remote work).

Remote work may be agreed upon at the stage of concluding the employment contract or during the employment relationship.

As a rule, however, during the employment relationship, remote work may be agreed only at the employee's request.

The exception here is a situation of emergency, epidemic threat, epidemic, or problems with ensuring safe and hygienic working conditions due to force majeure, when the employer may order remote work.

The employer is obliged to consider the request of certain employees listed in Art. 67 19 §6. These include pregnant employees, employees raising a child under 4 years of age, as well as employees caring for another member of the immediate family or another person in the same household who is severely disabled.

Interestingly, an employee cannot be treated less favorably than an employee working stationary. In particular, this applies to issues relating to the establishment and termination of an employment relationship, terms of employment, promotion and access to training in order to improve professional qualifications than other employees employed in the same or similar work, taking into account differences related to the conditions of remote work.

The employer has the right to control an employee working remotely. This applies in particular to the performance of remote work by the employee, control of occupational health and safety or control of compliance with security and information protection requirements, including personal data protection procedures. Such an inspection is carried out in consultation with the employee at the place of remote work during the employee's working hours.

Performing inspection activities may not violate the privacy of the employee performing remote work and other persons or hinder the use of home premises in a manner consistent with their intended purpose.

As a rule, the obligation to provide an employee performing remote work with materials and work tools, including technical devices, necessary to perform remote work lies with the employer. However, the employee and the employer may agree that materials and tools not provided by the employer, but by the employee, will be used for remote work. In such a situation, the employee is entitled to the equivalent.

The legislator introduced the institution of occasional remote work. It may be performed at the employee's request, submitted in paper or electronic form, for a period not exceeding 24 days in a calendar year.

To sum up, the above discussion should be considered the only basic approximation of the regulations in the field of remote work. The method of regulating remote work should be considered extensive and aimed at completely regulating the matter.



February 2024

Prohibition of additional work

In certain situations, from the employer's point of view, it is beneficial to limit the possibility of taking up additional work by its employees, e.g. for fear of physical fatigue of the employee, distraction related to other paid work, or due to personal limits on working time (e.g. . applicable to professional drivers or juvenile employees).

Currently, after the amendment to the Labor Code implementing the EU directive on transparent and predictable working conditions (2019/1152/EU), the employer, in principle, does not have the possibility to arbitrarily prohibit taking up other paid work.

As stipulated in the recently introduced Art. 261 of the Labor Code:

§ 1. An employer may not prohibit an employee from simultaneously remaining in an employment relationship with another employer or from simultaneously remaining in a legal relationship constituting the basis for the provision of work other than an employment relationship.

§ 2. The provision of § 1 does not apply:

  1. in the case specified in Art. 1011 § 1;
  2. if separate regulations provide otherwise.

From the above, it is prohibited to limit the possibility of additional employment. Does this mean, however, that the employer has no possibility of limiting employment? Well, no. Art. 26 1 §2 introduces a breach of the prohibition of restriction by introducing a non-competition agreement, regulated in Art. 101 1 of the Labor Code:

§ 1. To the extent specified in a separate agreement, the employee may not conduct activities that are competitive with the employer or provide work under an employment relationship or on another basis for an entity conducting such activities (non-competition ban).

§ 2. An employer who has suffered damage as a result of an employee's violation of the non-competition clause provided for in the contract may seek compensation for this damage from the employee on the principles set out in the provisions of Chapter I, Section Five.

A non-competition agreement during the employment relationship must be concluded in writing under pain of nullity. There is no need for it to be concluded on a document other than an employment contract. It is enough for its provisions to be clearly separated from the employment contract and be in writing.

The existence of a non-competition agreement cannot be presumed from the mere fact of the existence of an employment relationship. Both relationships are distinct in nature.

The contract does not have to be paid. This means that the employee does not have to receive any consideration for the undertaking to refrain from engaging in gainful employment or other competitive activities. However, the parties may provide for such gratification.

It should be noted that such an agreement is not limited only to restricting the establishment of another employment relationship. There is no doubt that an employee's own business activity may also be a competitive activity. To eliminate doubts, the scope of such activities should be specified in detail in the contract.

You should ask yourself whether the employee is obliged to sign such an agreement. The answer to this question is twofold.

Generally, the employee is not obliged to sign such an agreement. In a situation where a non-competition agreement appears at the time of concluding an employment contract, the employee may refuse to sign the non-competition agreement. However, the employer may make employment conditional on signing such an agreement. In case of refusal, an employment relationship will simply not be established.

The situation is slightly different in the case of an existing employment relationship. Here, too, the employee is not obliged to sign such an agreement. According to well-established case law, an employer may, however, terminate an employment contract with notice for reasons relating to the employee:

Refusal to sign a non-competition agreement may constitute a just cause for terminating the employment relationship with notice.

Judgment of the Supreme Court of February 12, 2013, II PK 165/12.

Finally, it should be added that even the absence of a non-competition agreement does not mean that the employee does not have any anti-competitive obligations towards the employer.

Pursuant to Art. 100 §2 section 4, the employee is obliged to take care of the good of the workplace, protect its property and keep secret any information the disclosure of which could expose the employer to damage.



January 2024

National Labor Inspectorate – tasks and powers.

The employee's rights and the employer's resulting obligations would be purely fictitious if there were no institutions supervising their implementation. In addition to labor courts, which generally ensure compliance with labor law standards, supervision is exercised by a specialized state body, the National Labor Inspectorate.

The National Labor Inspectorate is the body established to supervise and control compliance with labor law, in particular the provisions and principles of occupational health and safety, as well as - to a certain extent - compliance with the provisions on the legality of employment.

The organizational units of the National Labor Inspectorate are: the Chief Labor Inspectorate, district labor inspectorates (16 - covering the area of voivodeships) and the National Labor Inspectorate Training Center. Professor Jan Rosner in Wrocław.

The National Labor Inspectorate is entrusted with a number of diverse tasks. The most important of them include supervision and control of compliance with labor law provisions, e.g

  1. occupational health and safety rules,
  2. remuneration for work and other benefits arising from the employment relationship,
  3. working time, leaves and employee rights related to parenthood,
  4. employing minors and disabled people
  5. working conditions specified in specific regulations.

Additionally, PIP is involved in taking actions to prevent and reduce threats in the work environment, in particular:

  1. examining the circumstances and causes of accidents at work and monitoring the application of measures to prevent these accidents,
  2. analyzing the causes of occupational diseases and monitoring the application of measures to prevent these diseases,
  3. conducting research, measurements and analyzing threats caused by harmful and burdensome factors in the work environment.

The inspection has the right to carry out inspections that do not have to be announced. During its duration, it has broad powers, e.g.

  • free access to the premises of the inspected entity,
  • access to the facilities and premises of the inspected entity and inspect them (including machines),
  • obtaining information from all employees (including former ones), employed both under an employment contract and other relationships,
  • access to documents and making copies of them.

In the event of a violation of labor regulations or legality regulations, the National Labor Inspectorate authorities have the right to:

  • order the removal of deficiencies within a specified period
  • order immediate suspension of work if continued work poses a threat to life or health
  • order the immediate suspension of the operation of specific machines and devices
  • order the employer to immediately pay the employee's remuneration or other benefits
  • warn the employer
  • conduct fine proceedings against the employer if it finds that an offense has been committed.

As you can see, although not all of its tasks and powers are presented, the National Labor Inspectorate has a wide catalog of competences that enable it to operate efficiently. It is an institution designed for efficient and effective operation. In the event of violations of employee rights, especially in the field of occupational health and safety (but also in the case of other violations, e.g. regarding the method of employment), it is worth contacting the Inspectorate because it can take quick action.



December 2023

A fixed-term contract instead of an open-ended contract

In the decision of February 22, 2023 (I PSK 48/22), the Supreme Court stated that recognizing the termination of an illegally concluded long-term fixed-term employment contract upon the expiry of the period for which it was concluded (Article 30 § 1 point 4 of the Labor Code) does not does not exclude or destroy the employee's legal interest in determining the validity of an employment contract for an indefinite period from the starting date of the invalid conclusion of a long-term employment contract (Article 189 of the Code of Civil Procedure in connection with Article 8 of the Code of Civil Procedure and Article 58 of the Civil Code in connection with Article 300 of the Code of Civil Procedure in opposition to Article 30 § 1 point 4 of the Labor Code).

The Supreme Court recalled that this issue was the subject of considerations of the Supreme Court, which in the judgment of August 6, 2019, II PK 41/18 - LEX No. 3363960, stated that, subject to proper judgment, the unlawful conclusion of long-term employment contracts, instead of the correct conclusion open-ended labor law contracts, constitutes and justifies a legal interest in determining the conclusion and validity of an employment contract for an indefinite period from the date of conclusion of illegal fixed-term employment relationships. In the justification for the judgment, the Supreme Court stated that during the validity of the contested fixed-term employment contract, the employee always has a legal interest in establishing a lawful, indefinite employment relationship by means of an action for determination (Article 189 of the Code of Civil Procedure), if the employer confirmed the conclusion in writing. disputed type of fixed-term employment contract (Article 29 § 2 of the Labor Code)



November 2023

Remote work in the Labor Code

The amendment to the Labor Code, which entered into force on April 7, 2023, structured the institution of remote work in the Polish legal system. The urgent need to regulate the status of remote work resulted from the significant spread of this form of work during the Covid-19 pandemic. Remote work in accordance with the provisions of the Labor Code may be agreed by the Parties when concluding an employment contract or during the employment relationship. In exceptional circumstances, remote work may be performed at the employer's request. Both parties may submit a written request to discontinue remote work. There is a specific group of employees (employees specified in Article 142¹ of the Labor Code, a pregnant employee, an employee raising a child up to the age of 4 and an employee taking care of a disabled household member or immediate family member) to whom the employer is obliged to enable them to perform work. remote, and any refusal must be expressed in writing.

The rules for remote work are specified, depending on the company's internal situation: agreements concluded with company trade unions, regulations agreed with employee representatives, instructions to perform remote work in certain exceptional situations and an agreement concluded between the employer and the employee.

At his request, the employee is entitled to the so-called occasional remote work, not exceeding 24 days a year.

The Code prohibits discrimination against an employee performing remote work and protects the voluntary nature of remote work. Moreover, the employer must provide the employee working remotely with access to the workplace and contact with other employees.

Employers are obliged to: provide employees with the necessary materials and tools, including technical devices to perform remote work, as well as maintain and repair these devices, and cover all costs related to their operation. However, the parties may agree to perform remote work using technical devices belonging to the employee. In this case, the employer pays the employee a cash equivalent in the amount agreed with the employee. Both of these possibilities can be replaced by a lump sum payment corresponding to the expected costs incurred by the employee. Importantly, covering costs and paying an equivalent or lump sum do not constitute income within the meaning of the provisions of the Act of July 26, 1991 on personal income tax. They also have the right to inspect the employee's remote work, inspect occupational health and safety, or inspect compliance with information security and protection requirements, including personal data protection procedures based on regulations or agreements specifying the principles of remote work.



October 2023

Working time distribution

According to the Labor Code, working time is the time during which the employee is at the employer's disposal or in another place designated for work (Article 128 of the Labor Code). Labor law protects employees against arbitrary time setting.

One of the employer's obligations is to prepare a work schedule according to which the employee is to work. Exceptions to this rule are situations when, for example, the employee's working time schedule results directly from legal work or an employment contract and is therefore a permanent schedule. Moreover, a work schedule is not created in the case of the so-called task working time, flexi working time or individual working time. However, in a significant number of cases, the employer will be obliged to prepare a work schedule.

The work schedule cannot be created on the fly. Pursuant to Art. 129 §3 of the Labor Code, the working time schedule of a given employee may be prepared - in written or electronic form - for a period shorter than the settlement period, but covering at least 1 month. The timetable is to be provided to the employee at least 1 week before the beginning of the period for which it was prepared (also Article 129 §3 of the Labor Code)

However, important questions arise about the possibility of changing the previously established work schedule.

The possibility of changing the schedule at the employee's request, due to his privileged position in the employment relationship, does not seem to raise any doubts. It should be noted, however, that it is up to the employer whether to accept such a request, due to possible organizational and practical difficulties that will lie with the employer.

Much more doubts arise about the possibility of the employer himself changing the already established schedule. Labor law does not explicitly prohibit this.

It is worth mentioning here the position of the Ministry of Labor and Social Policy of October 18, 2013 on the modification of employees' working time schedules. This is not a generally applicable source of law, but it may provide some guidance on solving the problem.

This provision does not explicitly state that it is permissible to make changes to the employee's working time schedule, but it is practiced. It should be recognized that changes in employees' working time schedules are permissible for objective reasons.

According to the Labor Law Department of the Ministry of Labor and Social Policy, pursuant to Art. 129 § 3 of the Labor Code it is not clear how far in advance they can be made. Regulation in this respect may, however, be included in internal company regulations applicable at the employer, e.g. in the work regulations.

However, it is absolutely essential that a change in the work schedule, even if made for objective reasons, cannot violate other labor law norms, for example regulations regarding working hours.



September 2023

Conditions for diagnosing an occupational disease

In the judgment of August 10, 2023, the Provincial Administrative Court in Łódź (III SA/Łd 273/23) ruled that any doubts that cannot be removed should not be interpreted to the detriment of an employee employed in conditions that expose him to illness. The authorities examining the case should not only rely on medical certificates, but also admit all forms of evidence.



August 2023

Working time system

Shaping systems and schedules of working time is one of the elements of the employer's managerial powers. This was confirmed by the Supreme Court in the judgment of March 25, 1977, I PZP 60/76 (LEX No. 14372), in which it stated that "organizing the work process (...) belongs to the dispositional powers of the management of the workplace". The employee, on the other hand, undertakes to perform work at the time specified by the employer. The procedure for determining the organization of working time is not directly regulated in the Labor Code. The legislator limited himself to specifying the sources of labor law in which this matter should be regulated. Pursuant to the provisions of Article 150 of the Labor Code The working time system may be established in: a collective agreement, work regulations, in agreement with company trade unions, in agreement with employees' representatives, in the employer's announcement, at the employee's written request and in the employment contract. Art. 104[3] of the Labor Code, therefore it enters into force after 2 weeks from the date of its content being communicated to employees in a manner adopted by a given employer, and the employer is obliged to familiarize the employee with the content of the announcement before commencing work.

Although the legislator uses the term "working time system", it does not provide its legal definition anywhere. According to the definition adopted in the doctrine and literature, "the working time system is a legal construct that determines the nominal value and the way of organizing working time" (K. Stefański [in:] Labor Code. Commentary. Volume II. Art. 94-304(5), ed. VI, edited by K. W. Baran, Warsaw 2022, article 135). Therefore, when establishing the working time system, the employer should specify, among others: working time, working time standards, as well as settlement periods. Under the Labor Code, in its current wording, the following working time systems have been distinguished: basic, equivalent, task-based, intermittent, continuous, shortened week, weekend. In addition, some authors also distinguish a shortened system. If a given employer uses the basic working time system, this means that the daily working time is 8 hours and an average of 40 hours in an average five-day working week in the adopted settlement period not exceeding four months.

The interrupted working time system cannot be combined with an equivalent working time system or its modifications and with continuous work, with a shortened working week system and a weekend work system. Except for the situation when the employee agrees to it - in the intermittent working time system - pregnant employees or employees caring for a child under the age of four may not be employed.

Therefore, the working time systems used by a given employer should result from the internal regulations applicable at that employer. Short-time work and weekend work systems are applied on the basis of an employment contract and can only take place if the employee has submitted a written request in this regard.

As indicated by the Supreme Court in its judgment of March 21, 2014, file ref. II PK 174/13, changing the organization of working time does not require an amending notice. If "the individual working time schedule has not been determined in the employment contract or a separate agreement (which in fact is also such a determination by the employer at the employee's request under Article 142 of the Labor Code)" (Judgement of the Supreme Court of 21.03.2014, II PK 174/13, LEX No. 1455230.), the organization of working time is not a significant element of the employment relationship, so there is no need to specify it in the employment contract.

In some situations, the employer is obliged to take into account the employee's request to perform work in the intermittent, flexible or individual working time system. The application should be submitted in paper or electronic form. These are primarily employees of parents, employees of spouses and pregnant employees in certain special circumstances. The application may be refused only if it is not possible due to the organization of work or the type of work performed by the employee. The employer is obliged to inform the employee about the reason for the refusal in paper or electronic form.



July 2023

Work regulations

Work regulations are an internal source of labor law. As indicated by Art. 104 § 1 of the Labor Code, it determines the organization and order of work, as well as the rights and obligations of the parties to the employment relationship, i.e. the employer and the employee. An employer employing at least 50 employees is obliged to introduce work regulations, however, he is exempt from this obligation if the rights and obligations of the parties are specified in a collective labor agreement. An employer employing fewer than 50 employees, but at least 20, is obliged to introduce work regulations if such a request is made by the company trade union organization and the workplace does not have a collective labor agreement in force. An employer who is not obliged to introduce work regulations may introduce them, unless there is no collective labor agreement in place at the workplace, in which case the employer does not have such competence.

Pursuant to Art. 1042 § 1 of the Labor Code, work regulations are adopted by the employer after consultation with the company's trade union. If the employer does not operate the indicated organization or the organization has not agreed on the wording of the regulations within the prescribed period, the employer adopts the work regulations itself. If the parties have not agreed on the deadline, it is 30 days from the date of submission of the draft regulations of the trade union organization.

If there are several trade union organizations operating at the employer, the method of adopting the work regulations depends on whether the organizations have joint trade union representation. In the case of a positive answer, the employer is to cooperate with it as if it were one organization. If the trade union organizations do not have a joint representation, the organizations should present the employer with an agreed position within 30 days of the submission of the draft regulations. If they fail to comply with this obligation, the employer determines the work regulations himself.

The Labor Code contains a non-exhaustive catalog of issues that should be regulated by work regulations. These are:

  • organization of work, conditions of staying on the premises of the workplace during and after work;
  • equipping employees with tools and materials, as well as work clothing and footwear, as well as personal protection and personal hygiene equipment;
  • working time systems and schedules as well as accepted working time accounting periods;
  • duration of night time;
  • date, place, time and frequency of payment of remuneration;
  • lists of jobs prohibited to young workers and women;
  • types of work and a list of work positions allowed for juvenile workers for vocational training;
  • a list of light work allowed for juvenile workers employed for purposes other than vocational training;
  • obligations regarding occupational health and safety and fire protection, including the method of informing employees about the occupational risk associated with their work;
  • the employer's method of confirming the arrival and presence at work and justifying absences from work.

According to Art. 772 § 1 of the Labor Code, the employer is obliged to specify the conditions of remuneration for work in the remuneration regulations, if at least 50 employees are not covered by an enterprise or supra-enterprise collective agreement. As in the case of work regulations, an employer employing fewer than 50, but at least 20 employees, who are not covered by an enterprise or supra-enterprise collective agreement, is obliged to introduce remuneration regulations, if such a request is made by an enterprise trade union. Employers who are not obliged to adopt the remuneration regulations may adopt them if their employees are not covered by the company or multi-enterprise collective bargaining agreement setting out the terms of remuneration for work and the granting of other work-related benefits to the extent and in a manner that allows determining, on its basis, individual terms and conditions of employment contracts. work. It can also specify other work-related benefits, such as severance pay, and the rules for granting them.

The remuneration regulations are set by the employer. However, if an enterprise trade union operates at the employer, the employer is obliged to agree the content of the regulations with it.

The Remuneration Regulations come into force two weeks after the date of its announcement. It may take the form of posting the regulations on the notice board or posting them in the internal network of the workplace. The remuneration regulations are in force until the employees are covered by an enterprise collective labor agreement or an inter-enterprise collective labor agreement setting out the conditions of remuneration for work and granting other work-related benefits to the extent and in a manner that allows defining individual terms and conditions of employment contracts.

Prepared on the basis of: K. Jaśkowski, E. Maniewska, Labor Code. Updated commentary, Warsaw 2023



June 2023

Outwork contract - selected issues

The homework contract, hereinafter referred to as the contract, should be concluded in writing, specifying the type of contract and its basic conditions, in particular the type of work and the date of its commencement, as well as the principles of remuneration. The contract is concluded for a trial period, for a definite period, for the time of performing a specific job or for an indefinite period. The trial period may not exceed 3 months. In the contract, the parties specify the minimum monthly amount of work to be performed by the contractor. The minimum amount of work should be set so that its performance ensures obtaining at least 50% of the lowest remuneration specified by the Minister of Labor and Social Policy on the basis of art. 774 point 1 of the Labor Code, hereinafter referred to as "the lowest salary". If homework is the sole or main source of income for the contractor, the amount of work should be determined in such a way that its performance ensures obtaining remuneration not less than the lowest remuneration.

The contract may be terminated at any time by agreement of the parties.

A contract concluded for a trial period may be terminated with a 2-week notice. An agreement concluded for an indefinite period may be terminated with one month's notice. The notice period ends on the last day of the calendar month. The captive may not terminate the contract during the period of the contractor's holiday leave or during the period of his inability to work due to illness or isolation due to an infectious disease, if the period entitling to terminate the contract without notice has not yet expired, unless this is due to the declaration of bankruptcy of the captive or his liquidation or discontinuation of the homework system. The captive may not terminate the contract in the period between the appointment of the contractor for military exercises or training and their completion, unless this is due to the declaration of the captive's bankruptcy or its liquidation or the discontinuation of the homework system. The captive may not, without the consent of the enterprise trade union organization, terminate or terminate the contract with the contractor who is a member of the management board of this organization, unless it is justified by the declaration of the captor's bankruptcy or its liquidation or the discontinuation of outwork, reaching the retirement age or obtaining the right to a disability pension I or II group of invalids.

The publisher may terminate the agreement without notice:

  1. due to the fault of the contractor in the event of a serious breach by him of his obligations under the contract, and in particular, faulty performance of the work entrusted to him through his fault, failure to comply with the provisions and principles of occupational health and safety, failure to settle accounts for the collected raw materials or materials within the agreed deadlines, failure to perform without justified reasons for a period of 3 months, the amount of work referred to in § 3 section 1, or abuse in the use of social insurance benefits or other social benefits.
  2. due to the fault of the contractor in the event of his committing a crime which makes it impossible to further entrust him with outwork, if the crime is obvious or has been confirmed by a final judgment,
  3. in the event of failure to perform work by the contractor due to:
    1. incapacity for work due to illness or isolation due to an infectious disease for a period longer than 3 months,
    2. inability to work as a result of an occupational disease or caused by an accident at work for a period longer than 6 months,
    3. inability to perform work for reasons other than those specified in point a) and b) for a period longer than 1 month,

Termination of the contract without notice due to the fault of the contractor may not take place after 1 month from the date on which the publisher became aware of the circumstances justifying the termination of the contract. The employer may not terminate or terminate a contract concluded for an indefinite period during the period of pregnancy and maternity leave of women performing outwork, unless there are reasons justifying the termination of the contract without notice.

Termination by the employer of the contract with notice during pregnancy or maternity leave may take place only in the event of the employer's bankruptcy or liquidation, or the discontinuation of the homework system. If it is impossible to provide other work during this period, the woman performing homework is entitled to benefits specified in separate regulations. A contract concluded for a definite period or for the time of performing a specific job, which would be terminated after the end of the third month of pregnancy, is extended until the date of delivery.

The contractor may terminate the contract without notice if a medical certificate has been issued stating the harmful effects of the work performed on his health, and the employer fails to assign him another work within one month, appropriate due to the health condition and professional qualifications of the contractor and the conditions in which the work is performed. . If the work is performed in a dwelling, the contractor cy, the provision of sec. 1 shall apply mutatis mutandis also in the case when the work has a detrimental effect on the health of co-residents.

In the event of termination of the contract by the publisher in violation of the provisions of § 4-7a, the contractor shall be entitled to claim reinstatement to work under the previous conditions or for damages. In the event of termination of a contract concluded for a trial period, for a definite period or for the time of completion of a specific job, the contractor shall only be entitled to a claim for damages.

The body settling disputes may, instead of reinstatement, award compensation in the event of termination of a contract concluded for an indefinite period, if reinstatement to work would be contrary to the principles of social coexistence. The compensation may not be lower than 1 month's remuneration and may not exceed 3 months' remuneration, calculated as a cash equivalent for annual leave. The contractor who took up work as a result of reinstatement to work is entitled to remuneration for the time of being out of work, calculated as a cash equivalent for annual leave, not more than for 3 months. In this case, the period of unemployment for which remuneration was granted is included in the period of work. The period of being unemployed for which no remuneration has been granted is not considered a break in work, entailing the loss of entitlements dependent on uninterrupted work. A contractor who has been awarded compensation shall include the period of unemployment corresponding to the period for which compensation was awarded to the period of work.

May 2023

Reasons for recognizing an employee's behavior as a serious breach of a basic employee duty

Jurisprudence and legal science indicate that the employee's behavior justifying the termination of the employment contract by the employer pursuant to Art. 52 § 1 point 1 of the Labor Code, w should be unlawful, culpable and infringing or threatening the interests of the employer.

In one of the cases examined by the Supreme Court, the employee's behavior that was the reason for dismissal consisted of leaving the workplace and failing to appear for a meeting with other subordinate employees of the sales department, failing to inform the employer about his absence and the reason for it despite contacting other employees, and providing false information about being on sick leave,

In its decision of July 6, 2022 (II PSK 343/21), the Supreme Court stated that the unlawfulness of the employee's behavior and the fault of the employee, as well as the consequences of this unlawful and culpable behavior for the employer, constitute separate qualification criteria for a serious breach of the employee's basic duty, and the occurrence of one of them does not determines the existence of the others. Failure to meet at least one of these conditions precludes the possibility of recognizing the employee's behavior as a serious breach of the basic employee duty within the meaning of Art. 52 § 1 point 1

In the opinion of the appellate court, despite the undisputed fact that the plaintiff stopped working and went on a trip to Warsaw to visit a specialist doctor, the plaintiff cannot be blamed for breaching basic employee duties, because his behavior was justified by the circumstances and fear of health and the need to visit a doctor. In addition, the defendant has not demonstrated that as a result of the plaintiff's behavior, she suffered - as an employer - damage or that there was a real and significant threat to her interests. All these circumstances supported the conclusion that the termination of the employment contract between the parties was unlawful, which entitled the claimant to claim damages. As a consequence, this also resulted in the dismissal of the cassation appeal.

April 2023

The method of determining compensation for an employee for termination or dismissal without notice inconsistent with the provisions of the labor law

Termination of the employment relationship may be the result of termination or expiration through the lapse of time for which the contract was concluded. In the first case, the employment relationship ends under an agreement concluded between the employer and the employee or as a result of termination of the contract by one of the parties in one of two modes: with or without notice. The Labor Code (the Act of June 26, 1974, the Labor Code (i.e. Journal of Laws of 2022, item 1510, as amended) treats quite exhaustively about both of the above-mentioned variants, at the same time providing for specific compensation due to the employee, in which the contract was terminated contrary to applicable regulations.Interestingly, the nature of this compensation is completely different than in civil law, and this is due to the fact that the legislator does not make its award dependent on the occurrence of damage on the part of the employee.This observation is confirmed by the case law, which is based on the position that "the compensation referred to in the provisions of Article 47(1) of the Labor Code and Article 58 of the Labor Code are not related to the actual damage suffered by the employee and are payable regardless of its occurrence - an example of this may be the obligation to pay compensation for unjustified termination of the employment contract employment upon notice, even if the employee, having immediately started another job, was not unemployed for a single day, and his earnings related to the new employment are higher than those he achieved with the previous employer.” (Decision of the Supreme Court of April 27, 2022, I PSK 12/22, LEX No. 3431704.) As for the amount of compensation due to the employee in the event of termination of employment with him in a way that violates the provisions of labor law, it should be noted that in accordance with the current regulation, i.e. Art. 58 k.p. compensation is due in the amount of remuneration for the period of notice. In the event of termination of an employment contract concluded for a definite period of time, compensation is due in the amount of remuneration for the time until which the contract was to last, but not more than for the period of notice. In practice, the amount of compensation is calculated on the basis of the rules set out in the Regulation of the Minister of Labor and Social Policy of 8 January 1997 on detailed rules for granting holiday leave, determining and paying remuneration for the time of leave and cash equivalent for leave (Journal of Laws No. 2 , item 14 as amended). The rules applicable to determining the cash equivalent for holidays also apply in the case of compensation due to the employee in connection with the termination of the employment contract in violation of the provisions of the labor law. As additionally emphasized by the Supreme Court, “when determining the amount of compensation for unlawful termination of the employment contract by the employer without notice (Article 58 of the Labor Code in connection with Article 56 of the Labor Code), the basis for its calculation is the monthly average salary from the period preceding the termination of the employment contract. " (Judgement of the Supreme Court of February 17, 2000, I PKN 539/99, OSNP 2001, No. 14, item 463.)

March 2023

Abuse of law in labor law

One of the provisions of the preliminary provisions of the Labor Code is Art. 8, which is equivalent to Art. 5 k.c. It contains two equivalent and separate, though interrelated, general clauses - the socio-economic purpose of law and the principles of social coexistence. By introducing indefinite phrases into the text of a legal act, the legislator allows for interpretation taking into account extra-legal norms - moral, customary and customary. The application of the construction of principles of social coexistence may only serve "as a means of control and correction of the exercise of a subjective right." (K. Rączka [in:] M. Gersdorf, M. Raczkowski, K. Rączka, Labor Code. Commentary, 3rd edition, Warsaw 2014, art. 8.). “This regulation does not apply to situations where a specific entity violates the provisions of substantive law. The construction includes cases in which the behavior of a specific entity formally meets all the requirements provided for by law, while for other - non-legal - reasons (e.g. social or moral) this behavior does not deserve legal protection.” (Decision of the Supreme Court of November 24, 2021, III PSK 115/21, LEX No. 3333815.). As emphasized in the jurisprudence - adjudication on the basis of art. 8 k.p. always leads to a weakening of the principle of legal certainty, which is why this instrument should be used exceptionally and only in an inseparable connection with all the circumstances of a particular case. This is justified by the fact that "the norm of art. 8 k.p. means depriving a given entity of the possibility to exercise the right that it is entitled to in the light of the provisions of the law in question.” (Judgment of the Supreme Court of February 8, 2018, I PK 350/16, LEX No. 2483350.).

Referring to the socio-economic purpose of the law, it should be noted that in this part the provision is rarely used. “The clause of the socio-economic purpose of law cannot be understood in the current system of the Republic of Poland as a rule according to which each entitlement (subjective right of an employer or employee) must always serve both a social and economic purpose. This would mean, for example, that an employee could not exercise his or her right to annual leave only in his/her personal interest (…).” (G. Goździewicz, T. Zieliński [in:] Labor Code. Commentary, ed. VII, ed. L. Florek, Warsaw 2017, art. 8.). However, there is no basis to claim that it is now a completely dead provision. The courts refer to the discussed clause most often when ruling on an alternative possibility of reinstating an employee to work or when considering the issue of trade union protection. In the judgment of May 13, 2021, the Supreme Court stated that "the intentional coverage of an employee with trade union protection by the management board of a trade union organization, undertaken solely to protect against dismissal and having nothing to do with the idea of trade union protection of the durability of the employment relationship, is in contradiction with socio-economic purpose of this right.” (Judgement of the Supreme Court of May 13, 2021, III PSKP 17/21, OSNP 2022, No. 4, item 33).

The issue of possible abuse of the law is undoubtedly easiest to explain with an example. Suppose that X is a construction worker and Y is the employer who employs him. X, in July 2015, suffered a serious accident at work while performing it. Y was away from the workplace at that time, having learned about the accident, he ordered the other employees to wait for him (even though he was in a town 50 minutes away from the place of the accident) and only he himself transported X to the hospital in a company van. X sued Y for the payment of the pension, the action was brought in January 2019. The claimant's claim for the payment of the pension has expired. The plaintiff knew about the damage and the person responsible for it already on the day of the accident. Thus, in July 2015, the three-year limitation period for claiming a disability pension began to run. The defendant raised the objection of limitation, however, we can unquestionably state that this objection was, however, contrary to the principles of social coexistence. The defendant's conduct after the accident was inappropriate - as the employer, he grossly violated the duty to care for their life and health. It is also significant that the victim suffered significant damage to health.

February 2023

Protection of employees on parental leave

Protection against termination of the employment contract was also granted to employees on parental leave. According to Art. 1868 of the Labor Code, the employer may not terminate or terminate the employment contract in the period from the date of submission of the application by the employee entitled to parental leave to the date of termination of the leave in the case of an application for parental leave, and in the case of an application for a reduction in working time, to the date of return to the non-reduced working time, but not longer than for a total period of 12 months. However, the employee must submit such an application no later than 21 days before the start of using the leave or performing work with a reduced working time.

The employment contract may be terminated with an employee exercising the aforementioned rights, if there are reasons justifying the termination of the employment contract without notice due to the fault of the employee and in the event of bankruptcy or liquidation of the employer. The protection is also not granted if the employee has submitted an application for childcare leave or for a reduction in working time after performing an action aimed at terminating the employment contract - then the contract is terminated on the date resulting from this action. Pursuant to the judgment of the Supreme Court with the reference number II PK 331/14, such an act is a legal act which will result in the termination of the employment contract, and not an actual act leading to this.

The employer's breach of the prohibition on termination or termination of the contract results in the employee's claim for recognition of the termination as ineffective, and in the event of termination of the contract, for reinstatement to work on the previous terms or for compensation. The court may, if it determines that taking such a request into account is impossible or pointless, disregard the employee's request for the dismissal to be declared ineffective or for reinstatement to work and award compensation in their place. If the employment contract has been terminated as a result of unlawful termination, the employee who took up work as a result of reinstatement to work is entitled to remuneration for the time of being out of work, but not more than for 2 months, and if the notice period was 3 months, not more than in 1 month. In the event of unlawful termination of the employment contract without notice, the employee who returned to work as a result of reinstatement is entitled to remuneration for the time of being out of work, but not more than for 3 months and not less than for 1 month.

Elaborated on the basis of: Eliza Maniewska [in:] Kazimierz Jaśkowski, Eliza Maniewska, Commentary updated to the Labor Code, 2022

January 2023

Protection of young workers

Inadequate working conditions may have a negative impact on the psychophysical development of children and youth, which is why the legislator limited the possibility of employing them and at the same time provided for certain protective guarantees for them. Provisions concerning the employment of juveniles are contained in the ninth section of the Labor Code.

First, it should be noted that within the meaning of the Labor Code, a juvenile is a person who has turned 15 but has not yet turned 18.

As a rule, it is not allowed to employ people under the age of 15, and in addition to age, a juvenile must also have completed at least 8 years of primary school and have a medical certificate stating that the work of a given type does not pose a threat to his health. If a potential employee has completed an 8-year primary school but has not yet reached the age of 15, he may be employed in the calendar year in which he turns 15, and if he has completed school but does not reach the indicated age in a given calendar year, he may be employed on the terms specified for juveniles for vocational training in the form of vocational training. If such a person has neither graduated from school nor reached the required age, he or she may be employed under the rules specified for juveniles for the purpose of vocational training in the form of training to perform a specific job. In the last two cases, it is necessary to obtain the consent of the person's statutory representative or legal guardian and a positive opinion of the psychological and pedagogical counseling center, and in the latter case also the permission of the principal of the eight-year primary school in the district of which the person lives, to fulfill the school obligation outside the school.

If a juvenile is 15 years old but has not completed an 8-year primary school, at the request of his legal representative or guardian, an employment contract may be concluded in order to prepare for vocational training in the form of an apprenticeship to perform a specific job, if he has been admitted to a job-preparing branch established in an eight-year primary school or obtained the permission of the director of an eight-year primary school in the district of which he/she lives to fulfill the schooling obligation outside school and obtained a positive opinion of a psychological and pedagogical counseling center. An employment contract may be concluded with such a person after completing vocational training in the form of training for a specific job.

Termination of an employment contract concluded for vocational training with a juvenile with notice is possible only in the event of failure by the juvenile to fulfill the obligations arising from the employment contract or the obligation to learn, despite the application of educational measures to him, the juvenile is found to be unsuitable for the work for which he is undergoing training. vocational training, reorganization of the workplace preventing the continuation of vocational training or declaration of bankruptcy or liquidation of the employer.

A juvenile may also be employed for purposes other than vocational training, but only for light work, i.e. not causing a threat to life, health and psychophysical development and not hindering the fulfillment of the school obligation.

The employer is obliged to determine the working time of a juvenile employed in light work, taking into account the weekly number of hours of study resulting from the curriculum, as well as from the juvenile's school schedule. The weekly working time of a juvenile during school hours may not exceed 12 hours, and moreover, on the day of participating in school activities, the juvenile's working time may not exceed 2 hours. However, the weekly working time of a juvenile is increased to 35 hours a week and 7 hours a day during holidays. However, it should be borne in mind that a juvenile who has not reached the age of 16 may not work more than 6 hours a day.

The working time of a juvenile who has reached the age of 16 may not exceed 8 hours a day - juveniles may not be employed overtime. In addition, the working time of a juvenile includes the time of education resulting from the compulsory school curriculum, regardless of whether it takes place during working hours. If the daily working time exceeds 4.5 hours, the employee has the right to an uninterrupted 30-minute break from work, which is included in the working time.

It is forbidden to employ juveniles at night, which covers the hours from 10:00 pm to 6:00 am, and if the employee has not completed the age of 15 or primary school, from 8:00 pm to 6:00 am. A break in work, including night time, should last continuously for at least 14 hours. A juvenile is entitled to at least 48 hours of uninterrupted rest each week, including Sunday.

December 2022

Protection of trade union members

Trade union activists are exposed to unfavorable treatment by the employer, as they represent the interests of employees, which are often in conflict with the interests of the employer, and therefore they are subject to special protection.

As indicated by Art. 32 sec. 1 of the Act on trade unions, without the consent of the management board of a company trade union organization, the employer may not terminate or terminate the legal relationship with a member of the management board indicated by a resolution of the trade union organization or with another person performing paid work who is a member of a given company trade organization, authorized to represent this organization towards the employer or the body or a person who performs actions for the employer in matters of labor law, or unilaterally change the working conditions or remuneration to the disadvantage of such a person. This means that the indicated person does not have to be an employee within the meaning of the Labor Code - such protection may also be provided to a person employed under a civil law contract. However, he must be a member of the management board of a company trade union organization or be otherwise authorized to represent the company trade union organization towards the employer, while being a member of the said trade union organization. The application of this provision is excluded in the event of the employer's liquidation or bankruptcy. Protection is granted for the period specified in the resolution, increased by half, but not longer than one year after the expiry of the period specified in the resolution of the management board of the trade union organization. In the absence of resolutions on the protection of members of the organization, protection is vested in the chairperson of the trade union organization by law.

The management board of an enterprise trade union organization has 14 working days to resign, counted from the date of submission by the employer of a written notification of the intention to terminate or unilaterally change the legal relationship, specifying the reason justifying the termination or unilateral change of the legal relationship, and 7 working days from the date of submission by the employer of the written notification about the intention to terminate the legal relationship, stating the reason justifying its termination. The lack of the Management Board's response, either by expressing consent or by refusing to express it, within the indicated period shall be treated as consent.

The management board of an enterprise trade union organization is obliged to present a list of names of persons covered by protection along with its duration. In the case of changes, you must inform your employer of this fact within 7 days of the change.

The list may not exceed the number of persons constituting the employer's managerial staff or the number determined on the basis of the size of the enterprise trade union organization. If it has up to 20 members employed by a given employer, it may nominate 2 persons, and above this value 2 persons and:

  • one person for every 10 members of this organization employed by the employer, ranging from 21 to 50 of these members
  • one person for every 20 members of this organization employed by the employer, in the range of 51 to 150 of these members
  • one person for every 30 members of this organization employed by the employer, ranging from 151 to 300 of these members
  • one person for every 40 members of this organization employed by the employer, in the range of 301 to 500 of these members
  • one person for every 50 members of this organization employed by the employer, in the range above 500 of these members.

In addition, the protection described in the second paragraph is also available to up to 3 persons indicated by the resolution of the founding committee of the company trade union organization for 6 months from the date of establishing the founding committee. If no one is indicated by the resolution, the protection is granted to the chairman of the founding committee.

This protection also applies to a person holding an elected trade union function outside the company trade union organization, who is on unpaid leave or exemption from the obligation to perform work at the employer's, within the period of the said leave or exemption and for a year after its completion. In such a case, consent to protection is granted by the statutory body of the trade union organization in which the person performs or has performed this function.

November 2022

Protection of pregnant women

Pregnant women are the group that enjoys a higher level of protection than pre-retirement workers.

Pursuant to Art. 177 § 1 of the Labor Code, the employer may not terminate such an employee or terminate the employment relationship with her, unless there are grounds for termination of the employment contract pursuant to Art. 52 of the Labor Code, i.e. through the fault of the employee, and at the same time the trade union organization representing the employee will agree to terminate the employment relationship. However, the protection resulting from the aforementioned provision is not granted to workers employed for a trial period not exceeding one month. As indicated in Art. 177 § 3 of the Labor Code, an employment contract concluded for a definite period or for a trial period exceeding one month, which would be terminated after the third month of pregnancy, is extended until the day of childbirth, but this provision does not apply to contracts for replacement during justified absence worker's. Interestingly, the Supreme Court in the judgment No. I PK 33/02 ruled that for the purposes of the above-mentioned provision, the expiry of the 3-month period is calculated according to the lunar months of 28 days each.

An employment contract may be terminated with notice in the event of the employer's bankruptcy or liquidation, however, the employer is obliged to agree with the trade union organization representing the employee on the date of termination of the employment contract. If it is not possible to provide the employee with other employment during this period, she is entitled to rights for this period, and the time of collecting them is included in the period of employment from which the employee is entitled to rights.

Limiting the possibility of terminating an employment contract with pregnant employees is not the only legally prescribed method of their protection. Pursuant to Art. 178 § 1, such a worker may not be employed overtime or at night, and in addition, without her consent, she may not be delegated outside of her permanent place of work or employed in the system of interrupted working time.

In addition, an employer hiring a night worker is required to change her work schedule so that she can work outside the night time, and if it is impossible or pointless, transfer her to tasks that do not require night work. If this also proves impossible, the employer must release the employee from the obligation to work for the necessary time.

The situation is similar in the case of pregnant employees performing burdensome, dangerous or harmful work - the list of these works is included in the Regulation of the Council of Ministers of April 3, 2017 on the list of burdensome, dangerous or harmful work for pregnant women and women. breastfeeding baby. If this work is forbidden regardless of the degree of exposure to factors harmful to health or dangerous, he is obliged to transfer the employee to another job, and if it is not of such a nature, the employer should first adjust the working conditions or limit the working time in order to eliminate the risk. for the health or safety of employees, and if this is impracticable - transfer the employee to another job. If this is impossible, the employer must release the employee from the obligation to work for the necessary time.

October 2022

Protection of an employee in pre-retirement age

Certain groups of employees are particularly vulnerable to dismissal due to their physical condition or activities for the benefit of other employees, which is why the legislator grants them special protection.

Pursuant to Art. 39 of the Labor Code, "An employer may not terminate an employment contract of an employee who is not more than 4 years old before reaching the retirement age, if the employment period enables him to obtain the right to an old-age pension upon reaching that age". This prohibition applies to the general retirement age and the reduced retirement age for certain occupational groups, and does not apply to the so-called earlier retirement age, i.e. a situation in which the insured person is entitled to receive a retirement allowance despite not reaching the retirement age due to meeting other conditions, e.g. adequate contributory service.

In the judgment with reference number II PK 50/14, the Supreme Court ruled that "the prohibition of termination under Art. 39 of the Labor Code applies to employment under a fixed-term employment contract, also when it is concluded for a period that elapses before the employee reaches retirement age ", and this period may be supplemented" to the required amount until retirement age, but there is no requirement here that it should happen with one and the same employer ”. This judgment takes a different line than the Supreme Court's judgment with reference number II PK 20/11, issued only a few years earlier, in 2011, in which the Court took the position that employees employed for a fixed period whose employment contract would be terminated before reaching an employee of the retirement age is not entitled to protection under Art. 39 of the Labor Code

Moreover, it should be borne in mind that the discussed provision protects only against the termination of the employment contract, but not against its termination. Consequently, if the notice was submitted before the protection period provided for by Art. 39 of the Labor Code, it does not infringe this provision. Moreover, in the period of 4 years before reaching the retirement age, the contract with the employee may be terminated without notice, i.e. in the situations described in Art. 52 of the Labor Code (due to the employee's fault) and Art. 53 of the Labor Code (through no fault of the employee).

Additionally, pursuant to Art. 411 of the Labor Code, application of Art. 39 of the Labor Code is excluded in the event of the declaration of bankruptcy or liquidation of the employer.

Prepared on the basis of: Kazimierz Jaśkowski [in:] Kazimierz Jaśkowski, Eliza Maniewska, Commentary updated to the Labor Code, 2022

September 2022

Notice periods for the employment contract

Pursuant to Art. 30 par. 1 of the Act of June 26, 1974, the Labor Code (consolidated text: Journal of Laws of 2022, item 1510 - hereinafter: the Labor Code), the employment contract may be terminated in four ways. First, it happens by agreement of the parties. Another form of termination of this contract is the declaration of one of the parties (the employer or the employee) with the simultaneous observance of the notice period - this method is defined by the legislator as "termination of an employment contract with notice". The third method is the submission of a declaration by one of the parties without notice, i.e. termination of the employment contract without notice. The last of the variants listed in the Code of Passage is the expiry of the period for which the employment contract was concluded.

At this point, it is worth taking a look at the second of the distinguished ways. The most important here is the practical dimension of the rules for calculating the notice periods. Under the Labor Code, the legislator regulates the period of time that must elapse from the termination of the contract to the termination (termination) of the employment relationship. According to Art. 36 par. 1 notice period for an employment contract concluded for an indefinite period and an employment contract concluded for a definite period is determined by the period of employment with a given employer. The Code regulation provides for: 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 and 3 months if the employee has been employed for at least 3 years.

The legislator provides a separate treatment for the notice period for an employment contract in the case of a contract concluded for a trial period. Art. 34 of the Criminal Code sets for the parties: 3 working days if the trial period does not exceed 2 weeks; 1 week if the trial period is longer than 2 weeks and 2 weeks if the trial period is 3 months.

In practice, the method of calculating the above terms is of the greatest importance. When referring to the time limits set in months, it should be noted that the starting point for the termination notice period is the first calendar day of the month following the month in which the termination notice was submitted. The notice period therefore ends on the last day of the month. It should be remembered that for the method of calculating the monthly period, it will not matter whether the month has 28, 29, 30 or 31 days (the termination date is simply the last day of the month).

As for the method of calculating the periods specified in weeks, the starting point for the termination of the employment contract is the first Sunday following the date of submitting the notice of termination; Saturday is always the last day of the notice period.

Finally, it is also worth considering the rules for converting terms expressed in days. The first day of termination is the business day following the delivery of the termination notice. It should be emphasized, however, that when determining the moment at which the notice period counted in working days begins, working days are taken into account, i.e. all days except Sundays and public holidays, also days off from work.

For example:

  1. Termination of an employment contract for an employee working for 7 months will be charged as follows: the notice was given to the employee on March 25, therefore, for a period of at least 6 months, the monthly term will start on April 1 and will end on the last day the month of April (i.e. April 30).
  2. Termination of an employment contract for an employee working for 4 months will be charged as follows: the notice was given to the employee on April 1 (Friday), therefore, for a period of work lasting less than 6 months, the 2-week period will start on Sunday, April 3 and will end on Saturday 16 April.
  3. Termination of an employment contract for an employee working on a trial period for 1 week will be charged as follows: the termination notice was given to the employee on May 4 (Monday), therefore the 3-day period, provided for a trial period not lasting longer than 2 weeks, will start on May on Tuesday and will end on May 7 (Thursday).

August 2022

Absence from work as a "fundamental breach of basic duties" in the case of a disciplinary dismissal

The principle of employee preference should be the starting point for considerations regarding termination of employment. The protective function of labor law is manifested, inter alia, in the use of the structure of termination of an employment contract with notice. Art. 32 of the Labor Code states: “§1. Either party may terminate the employment contract with notice. §2. The employment contract is terminated upon the lapse of the notice period. " Nevertheless, Art. 52 provides for the possibility of termination of employment by the employer without notice and due to the employee's fault, i.e. disciplinary dismissal. It is worth emphasizing, however, that this procedure "as an extraordinary way of terminating the employment relationship, should be used by the employer exceptionally and with caution." (M. Gersdorf [in:] M. Raczkowski, K. Rączka, M. Gersdorf, Labor Code. Commentary, 3rd edition, Warsaw 2014, art. 52).

Immediate termination of an employment contract is allowed only in the event of serious violations of employee duties by an employee, committing a crime that prevents him from continuing to employ him in the position held, or in the event of loss of rights necessary to perform work in the position at the fault of the employee. According to the Supreme Court's judgment, reference number I PSKP 52/21, the concept of “serious violations of basic employee duties” includes three elements: unlawfulness, guilt and violation or threat to the employer's interests. (The judgment of the Supreme Court of 8 February 2022, I PSKP 52/21, LEX No. 3343351). On the other hand, there is no closed catalog of employee behavior that could be unequivocally classified as the said infringement. In this situation, it must be a casum ad casum assessment, taking into account all the facts, and "especially the state of consciousness and will of the employee" (Decision of the Supreme Court of 24/01/2019, I PK 8/18, LEX No. 2610261.). It is undoubted that Art. 100 of the Labor Code constitutes the absolute minimum of employee duties to be observed by an employee, taking into account the requirement of loyalty. The issue of absenteeism as a reason for dismissal is often manifested in the jurisprudence. However, it cannot be accepted that any absence could be considered a breach of basic employee obligations. According to settled case law, it is recognized that such absence must be qualified.

Termination of the employment relationship, without notice, by the employer due to the employee's absence is considered justified, inter alia, in cases where an employee voluntarily leaves the place of work, before the end of working hours, without a justified reason and without obtaining the consent of the superior (Judgment of the Supreme Court of 18/12/2019, I PK 210/18, OSNP 2020, No. 12, item 133.) . If an employee can be attributed with intent or gross negligence, absenteeism caused by leaving the workplace without excuse may be treated as a serious breach. Thus, the employee does not comply with the working time, regulations and order established in the workplace (Article 100 of the Labor Code). It is worth bearing in mind, however, that not every absence, which is not formally justified, constitutes a serious breach of basic employee duties (Decision of the Supreme Court of 04/06/2019, II PK 141/18, LEX No. 2690385). If, on the other hand, the employee's behavior so far indicates serious shortcomings in the scope of justifying the absence, it is undoubtedly possible to charge the employee with the violation of basic duties. Finally, it is also worth noting the issue of the employee's absence due to being on sick leave. This type of absence, justified due to the employee's health condition, if it is contrary to its purpose - and this means in the first place taking actions aimed at prolonging the absence or performing other work, is against the employer's welfare and in most cases will be considered a serious infringement basic employee duties that constitute grounds for disciplinary dismissal.

July 2022

Termination of the employment contract

The employment relationship shall expire on the day of death of the employee. After the death of the employee, property rights are transferred in equal parts to the spouse and other persons who meet the conditions required to obtain a survivor's pension in accordance with the provisions on pensions from the Social Insurance Fund. In the absence of such persons, these rights shall be inherited.

Employment contracts with employees shall expire on the day of the death of the employer. An employee whose employment contract has expired is then entitled to compensation in the amount of remuneration for the notice period. However, the contract does not expire in the event of:

  • the employee is taken over by a new employer under the terms of art. 23 1 of the Labor Code
  • the establishment of a succession management board upon the death of the employer, in accordance with the Act of 5 July 2018 on succession management of an enterprise of a natural person and other facilities related to the succession of enterprises (Journal of Laws, item 1629 and of 2019, item 1495) , hereinafter referred to as "the Act on the succession management".

The employment contract expires after 3 months of the employee's absence from work due to temporary arrest, unless the employer terminated the employment contract earlier without notice due to the employee's fault. The employer, despite the expiry of the employment contract due to temporary arrest, is obliged to re-hire the employee if the criminal proceedings have been discontinued or if the judgment of acquittal has been passed and the employee has reported his return to work within 7 days of the judgment becoming final. This does not apply to cases where the criminal proceedings were discontinued due to the statute of limitations or amnesty, as well as in the event of conditional discontinuation of the proceedings.

In the event of a breach by the employer of the provisions of the expiry of the employment contract, the employee has the right to appeal to the labor court.

June 2022

Discretionary award and bonus

Pursuant to Art. 105 of the Labor Code, to employees who, by exemplary performance of their duties, showing initiative at work and increasing its efficiency, and quality contribute especially to the performance of the plant's tasks, they can be awarded prizes and distinctions. The award is therefore "an exceptional benefit, which may be awarded for what goes beyond the catalog of activities to which the employee undertook when entering into an employment relationship, i.e. for what exceeds his (ordinary) duties" (Judgment of the Supreme Court of 5 December 2016 year, file reference number III PK 30/16). Following the above-mentioned the judgment should indicate that "awards may be granted to an employee only for extraordinary performance of official duties, and not for" normally "performed work. By their nature, awards cannot therefore apply to all or more of the employees of a given employer, and therefore a commonly used practice deviating from the rule expressed in Art. 105 of the Labor Code, consisting in the wide use of rewards, "discretionary" or "bonuses" discretionary "should not be approved (yes, justification of the Court's resolution Supreme Court of 27 March 2007, II PZP 3/07, OSNP 2007 No. 17-18, item 243) ".

The statutory bonus is not described in the Labor Code. It is an additional element of remuneration that is to motivate the employee to work better and more efficiently. The conditions for granting the statutory bonus are clearly defined in the regulations or in the employment contract. These conditions must be based on objective criteria and their fulfillment is tantamount to receiving a statutory bonus by the employee.

The difference between the statutory bonus and the discretionary bonus lies in the fact that their receipt is based on various criteria included in different sources of labor law. The discretionary award is therefore based on subjective criteria and depends on the discretion of the employer. The employee is not entitled to the payment of such a bonus (resolution of the Supreme Court of 30 July 1986, file reference number III PZP 47/86). The bonus, on the other hand, is one of the components of the remuneration and is awarded on the basis of rigid, objective conditions. This was confirmed by the Supreme Court in the judgment of June 29, 2005 (file reference number I PK 272/04), stating that "the benefit, the payment of which depends on the fulfillment of a specific and verifiable condition, is a bonus and not a reward dependent on the recognition of employers ".

May 2022

Can a foreign divorce judgment be recognized if there is no fault found?

Obligation to protect business secrets

Enterprise secret - what is it?

Pursuant to Art. 11 sec. 2 of the Act on Combating Unfair Competition indicates that a trade secret is understood as technical information, technological, organizational enterprises or other information possessing economic value that as a whole or in a particular combination and set their elements are not commonly known to people who usually deal with this type of information or are not easily accessible to such people, as long as the authorized to use or dispose of the information he has made, while maintaining due diligence, actions to keep them confidential.

According to the judgment of the National Appeal Chamber of November 8, 2017 (file reference number KIO 2252/17), "a specific information (message) may be considered a business secret, in the case of a cumulative fulfillment of the following conditions: a. The information is of a technical nature, technological, organizational or commercial and has an economic value for the enterprise (economic entity), and b. the information has not been disclosed to the public, and c. the necessary steps have been taken in relation to it in order to maintain its confidentiality ”. Therefore, these are all the data that allows a given enterprise to function. However, these data are not generally known, not considered confidential or easily accessible to other people.

Is the protection of the trade secret obligatory?

Not. However, it should be borne in mind that failure to introduce such a secret is a burden for the enterprise.

The company secret is legally protected

According to, inter alia, joke. 11 sec. 3 of the Act on Combating Unfair Competition, obtaining information constituting a business secret is an act of unfair competition. Moreover, in accordance with par. 4 above of the Act, The use or disclosure of information constituting a trade secret also constitutes an act of unfair competition. What is more, the disclosure, use or acquisition of information constituting a trade secret is an act of unfair competition also when, at the time of its disclosure, use or acquisition, the person knew or could have known with due diligence that the information was obtained directly or indirectly from the person who used it. or revealed them.

Disclosure, use or acquisition of information constituting a trade secret is not an act of unfair competition when:

  • it was made in order to protect a legitimate interest protected by law.
  • it took place in the exercise of the freedom of expression or in order to reveal irregularities, misconduct, act in breach of the law to protect the public interest.
  • when the disclosure of information constituting a business secret to employee representatives in connection with the performance of their functions on on the basis of legal provisions, it was necessary for the proper performance of these functions.
  • How to protect a trade secret?

    The most common are confidentiality agreements or appropriate clauses, including in mandate or employment contracts. It should be emphasized that such provisions should precisely define the obliged person, confidential information, the period of time for which a given person is obliged, and the case of breach of a trade secret.

    April 2022

    Vaccination obligation for individual professional groups

    Pursuant to Clause 12 Sec. 1 points 1 and 2 of the Regulation of the Minister of Health of March 20, 2020 on the announcement of an epidemic in the territory of the Republic of Poland (Journal of Laws of 2022, item 340), the obligation to vaccinate against COVID-19 is subject to persons:

    1. entitled under separate provisions to provide health services,
    2. who have acquired professional qualifications to provide health services in a specific scope or in a specific field of medicine,
    3. employed or performing pharmaceutical services, professional tasks or professional activities in a generally accessible pharmacy or in a pharmacy outlet,
    4. being students of the fields of study preparing to practice a medical profession such as: doctor, dentist, pharmacist, nurse, midwife, laboratory diagnostician, physiotherapist.

    The above-mentioned persons are required to undergo vaccination against COVID-19, the result of which will be the receipt of an EU digital vaccination certificate, i.e. EU Covid certificate. This obligation also applies to the above-mentioned people who by 1 March 2022 will elapse more than 6 months from obtaining a positive diagnostic result for SARS-CoV-2. The vaccination obligation applies to people who have no contraindications in terms of their health.

    In the announcement of the Ministry of Health, we read that the Labor Code authorizes the employer to request the employee to submit a declaration on the fulfillment of the obligation to undergo vaccination against COVID-19. The legal basis is Art. 221 § 4 of the Labor Code, which indicates that the employer is entitled to request the employee to provide him with personal data other than those specified in that article, when it is necessary to exercise the right or fulfill the obligation resulting from the law. The disclosure of this information takes the form of a declaration made by that person. However, if the above-mentioned the person does not submit such a declaration or submits a declaration of non-vaccination against COVID-19, the employer may change the organization of work or terminate the employment relationship with an unvaccinated employee.

    Is the differentiation of an employee's situation on the basis of vaccinations discrimination or permissible unequal treatment?

    The employer has the right to differentiate employees according to objective criteria. In this case, it is about safety and health criteria. The principle of equal treatment and non-discrimination does not, therefore, prevent different treatment of people not vaccinated against COVID-19. However, these restrictions only have to be established by law.

    March 2022

    Reimbursement of training costs under Art. 103 (5) of the Labor Code

    Raising professional qualifications - selected provisions of the Labor Code

    The Labor Code stipulates that the employer is obliged to help employees improve their professional qualifications. This obligation was expressis verbis expressed in Art. 17 of the Labor Code and art. 94 points 6 of the Labor Code It is primarily about those professional qualifications that increase the competences of the employee in the position held by him.

    Raising qualifications should be understood as gaining or supplementing knowledge and skills by an employee. It should be emphasized that only in the case of raising qualifications on the initiative or with the consent of the employer, the employee may apply the provisions of the Labor Code regarding the professional qualifications of employees. Then, unlike in the case of self-improvement of qualifications, the employee is entitled to, inter alia, training leave or dismissal from all or part of a working day.

    The Labor Code indicates that the employer concludes an agreement with an employee raising his professional qualifications that specifies the mutual rights and obligations of the parties, i.e. training contract. It contains it in order to oblige the employee to continue working for him for a maximum period of 3 years from the moment of commencing or completing the improvement of professional qualifications. The employer may freely shape the content of the training contract, but may not include provisions less favorable to the employee than the provisions of the Labor Code.

    When is an employee obliged to reimburse training costs?

    An employee raising professional qualifications:

    1. who, without justified reasons, fails to raise professional qualifications or stops improving these qualifications,
    2. with whom the employer terminates the employment relationship without notice due to his fault, during the improvement of professional qualifications or after its completion within the period specified in the training contract,
    3. who in the period specified in point b will terminate the employment relationship with a notice, with the exception of termination of the employment contract for reasons specified in art. 94 (3) of the Labor Code (mobbing),
    4. who in the period specified in point b will terminate the employment relationship without notice pursuant to Art. 55 of the Labor Code (termination without notice of the employment contract by the employee) or Art. 94 (3) of the Labor Code (mobbing), despite the lack of reasons specified in these provisions

    - is obliged to reimburse the costs incurred by the employer for this purpose

    for additional benefits, in proportion to the period

    employment after completing the improvement of professional qualifications or period

    employment during their lifting.

    Therefore, if the employee works only half of the time required by the training contract, he is obliged to pay back half of the costs of the vocational training.

    What do the costs of vocational training include?

    The reimbursement of the costs of vocational training covers the costs of additional benefits granted by the employer, i.e. payment for education, training materials, accommodation during training.

    The reimbursement may not include the remuneration paid for the training leave or for the period of dismissal from work for the period of participation in the training. The costs of vocational training do not have to be reimbursed, inter alia, also when:

    1. the employer terminates the employee's employment relationship,
    2. the employment relationship will be terminated by agreement of the parties,
    3. the employment contract will expire
    4. the employment contract will be terminated without notice, but not through the fault of the employee,
    5. the employment contract is terminated due to the fault of the employer.

    February 2022

    Restoration of working and pay conditions

    During the employment relationship, the terms and conditions of work and pay may be terminated (Art. 42 of the Labor Code). If a dispute arises between the employee and the employer on this background, the court may decide to restore working and pay conditions. If the employee wins in such a dispute, the court does not have to adjudicate on reinstatement, as the employment relationship is still ongoing (there has only been a change in working and pay conditions). This was recalled by the Supreme Court in its decision of April 28, 2021 (III PSK 53/21).

    January 2022

    Non-competition after termination of employment.

    The non-competition agreement is aimed at securing the employer's interests against possible, undesirable behavior of current employees and former employees. A non-competition agreement may be concluded for the duration of the employment relationship, as well as for a definite period after the termination of the employment contract. The non-competition clause is regulated in Art. 1011 - 1014 of the Labor Code.

    The employer has the right to sign such an agreement in writing with employees who have access to particularly important information for the entrepreneur. Based on the previous jurisprudence of the Supreme Court, it should be stated that it is the entrepreneur who determines what information is of particular importance to him and who has access to this information. Pursuant to Art. 1012 par. 3 of the Labor Code, it follows that compensation under a non-competition agreement after termination of employment may not be lower than 25% of the remuneration received by the employee prior to termination of employment for a period corresponding to the duration of the non-competition clause. Based on the content of the judgment of the Supreme Court of 8 January 2008, I PK 161/07, it follows that if the employment relationship lasted shorter than the contractual period of non-competition after termination of employment, the amount of compensation should refer to the length of the non-competition clause, and not to the actual duration of the employment contract.

    December 2021

    Can unauthorised absence from work be the basis for disciplinary dismissal?

    Unexcused absence of an employee from work may constitute grounds for disciplinary dismissal pursuant to Art. 52 § 1 of the Labor Code, which states that the Employer may terminate the employment contract without notice due to the employee's fault in the event of a serious breach by the employee of basic employee duties.

    Unauthorized absence may constitute a condition for a serious breach of an obligation under the above-mentioned article of the Labor Code. Each unexcused absence should be investigated in specific situation. In particular, by verifying whether there were any reasons for the employee's absence from work, other than the intention to fail to appear at work. The doctrine emphasizes that these reasons should be significant, but they can range widely.

    It is worth mentioning that it is the employee's responsibility to notify the employer about the reason for the absence and the duration of the absence no later than on the second day of absence from work. Failure to comply with the above obligation results in the presumption of quitting the job.

    November 2021

    Limitation and strict deadlines labor law

    The science of labor law distinguishes between limitation of claims and limitation, i.e. tight deadlines. The limitation period has been expressed in Art. 291 § LC According to the wording of that provision, the limitation period is three years and runs from the date on which the claim became due. However, from this rule, the provisions of Art. 291 § 2, §2 (1), §3 and § 5 of the Labor Code introduces exceptions. According to Art. 291 § 2 of the Labor Code Employer's claims for compensation for damage caused by an employee as a result of non-performance or improper performance of employee duties shall be statute-barred after 1 year from the date on which the employer learned about the damage caused by the employee, but no later than 3 years after the damage was caused. This provision also applies to the claim referred to in Art. 61 (1) LC (unjustified termination of employment without notice by the employee) and 101 (1) (non-competition clause). If the employee caused the damage intentionally, the provisions of the Civil Code (Article 291 §3 of the Code of Civil Procedure), i.e. Art. 442 § 1 and 2 of this Code. On the other hand, a deadline is one whose expiry causes a definitive loss of the legal possibility to perform an action necessary to cause specific material and legal effects. The expiry of the mandatory deadline is always taken into account ex officio. The strict deadlines, the expiry of which deprives the employee of the possibility of pursuing claims before the labor court, are:

    • the deadline of 14 days from the notification of rejection of the objection to the application to the labor court to revoke the ordinal penalty (Article 112 § 2 of the Labor Code),
    • 30 days from the date of concluding a settlement infringing the employee's legitimate interest to apply to the labor court for declaring it ineffective (Art. 256 of the Labor Code)

    October 2021

    Restrictions on determining remuneration for work

    Freedom in determining remuneration for work may not be used to extort social insurance benefits. In the judgment of the Court of Appeal in Lublin of June 30, 2021 (III AUa 312/21), we read that "Determining the amount of remuneration in an employment contract based on the principle of freedom of contract is subject to certain limitations, which results from the fact that the employment contract and the remuneration specified therein has not only direct effects between the parties, but also further effects, including at the level of social insurance. "

    In the case at hand, the Court found that the remuneration specified in the employment contract was too high and was intended only to receive a high sickness benefit. The woman concerned "has a university degree in dietetics. During these studies, until March 30, 2018, she worked as a salesman in a cosmetics store (...), and in the period immediately preceding the start of work for the contribution payer, i.e. in the period from April 20, 2018 to the end of May 2018, she worked in a restaurant as a chef, "full-time", on the basis of a mandate contract, for a minimum wage ".

    Meanwhile, the new work was about consulting and making investments in the field of sanitary installations. The woman "due to her education and skills acquired in the course of working for previous employers (cosmetic shop (...) - seller and restaurant - cook) did not have any preparation for work in the industry in which the contribution payer operates."

    According to the court, "the amount of remuneration for work, and thus the basis for the calculation of social security contributions (...) must be fully adequate to the type, quantity and quality of work performed and the professional qualifications of the employee."

    September 2021

    Can an employee terminate an employment contract by e-mail?

    As is well known, an employment contract is almost always concluded in writing. Pursuant to the provisions of the Labor Code, such a contract should be terminated or terminated in writing. The COVID-19 pandemic has shown, however, that this principle cannot always be implemented by its addressees - the inability to meet face-to-face and difficulties in the activities of postal operators encourage the use of electronic communication forms in various areas of life. However, can they be used to terminate an employment contract?

    It is worth noting that the Labor Code is silent on possible sanctions for failure to comply with the written form (such as, for example, invalidity of the termination of a contract), and does not delve into the technical issues of employee and employer declarations. Art. 300 of the Code requires matters not regulated by the Civil Code. It is in its provisions, namely in Art. 60, we will find the answer to the question that bothers us. According to this provision, the declaration of intent of any person (and such declaration is the termination of the contract) may be expressed by any behavior of that person that sufficiently discloses his will. Further, the provision also indicates the admissibility of the electronic form of a declaration of will - that is, for example, expressing it via e-mail.

    Therefore, it should be considered that the termination of the employment contract may be made in electronic form. Although from the point of view of the Labor Code it will be defective, due to the lack of any sanction for failure to comply in writing, it will be effective in accordance with the provisions of the Civil Code, and the employer will not be able to pursue any claims from the employee related to a defectively submitted declaration of intent.

    It is worth noting that the Supreme Court also referred to the issue of termination of employment in the judgment in case I UK 94/16 of March 9, 2017. The Supreme Court even came to the conclusion that the agreement of the parties or the termination of the employment contract may be expressed implicitly (which is allowed by the provision of Art. 60 of the Civil Code). This allows us to assume that even more so, they can take the form of a clear and comprehensible electronic message.

    August 2021

    Equal pay for women and men

    On June 11, 2021, the Council of the European Union held further discussions on the procedure of the draft Directive of the European Parliament and of the Council on strengthening the application of the principle of equal pay for women and men for the same work or work of equal value through pay transparency mechanisms and mechanisms enforcement (COM 202 193 final, 2021/0050 COD, hereinafter: Directive). The directive would apply to employers in both the public and private sectors.

    According to EU legislators, women and men performing the same job still do not receive the same remuneration. According to the results of surveys carried out by Eurostat, this difference is even more than 14%. Arguments are raised that such a drastic pay gap has a negative impact on women's quality of life. It is true that lower earnings affect not only life (and its quality) while receiving the salary, but also after its completion - after all, the amount of the pension depends on the amount of previously paid contributions, which in turn depends on the earnings.

    Despite the introduction of the already binding directive of the European Parliament and of the Council of 5 July 2006 on equal treatment of women and men in matters of employment and occupation, the EU countries still notice a disproportion in earnings. The purpose of the new directive is to establish wage transparency within business units. For this it is necessary to establish a uniform definition of "pay" and "work of equal value". According to the EU legislator, the introduction of such provisions will result in greater respect for the law and will facilitate the possibility of enforcement of the law by the EU countries.

    July 2021

    TELEPENDING AND REMOTE WORK

    The issues of telework and remote work are regulated in different legal acts. The definition of teleworking is included in the labor code. Pursuant to Art. 675 § 1 of this code: "work may be performed regularly outside the workplace, using electronic means of communication within the meaning of the provisions on the provision of electronic services".

    On the other hand, the definition of remote work is included in the Act of March 2, 2020 on special solutions related to the prevention and combating of COVID-19, other infectious diseases and crisis situations caused by them. Pursuant to Art. 3 sec. 1 of this Act: "during the period of the epidemic threat or epidemic state announced due to COVID-19, and within 3 months after their cancellation, in order to counteract COVID-19, the employer may commission an employee to perform, for a specified period of time, the work specified in an employment contract, outside the place of its permanent performance ".

    Therefore, it follows that teleworking may be performed by agreement of the parties, i.e. in this case the employer and the employee. On the other hand, remote work is performed as a result of the employer's order.

    Moreover, in the case of performing remote work, the employer is obliged to provide the employee with all the tools necessary to perform this work. On the other hand, in the case of teleworking, the conditions for its application are regulated by an agreement between the employer and the workplace trade union organization.

    June 2021

    Dismissal for reasons beyond the control of the employee

    Due to certain circumstances, the employer may terminate the employment relationship with employees for reasons beyond their control. The provisions of the Act of May 22, 2003 on special rules for terminating employment relationships with employees for reasons not related to employees (Journal of Laws 2018.1969, i.e.) apply then. The provisions of the Act shall apply if it is necessary for an employer employing at least 20 employees to terminate employment relationships for reasons not related to the employees, by means of a notice given by the employer, as well as by agreement of the parties, if, for a period not exceeding 30 days, the termination covers at least:

    1. 10 employees, if the employer employs fewer than 100 employees,
    2. 10% of employees if the employer employs at least 100 but less than 300 employees,
    3. 30 employees, if the employer employs at least 300 or more employees. These layoffs are commonly referred to as collective redundancies.

    The figures for the employees referred to above include employees who are terminated as part of collective redundancy at the initiative of the employer by mutual agreement of the parties, if at least 5 employees are concerned.

    According to the judgment of the Supreme Court, "reasons not attributable to the employee" are all circumstances unrelated to his psychophysical features and the way he performs his employee duties (Supreme Court judgment of 14 December 2016, file ref. II PK 281/15 ). Such a situation will therefore take place, for example, when the employer is not able to provide the activities or the reason for the dismissal relates directly to the employer (opening of bankruptcy or liquidation proceedings).

    The aforementioned act also provides for the procedure of individual dismissal for reasons not attributable to the employee. Pursuant to Art. 10 of the Act, we will deal with an individual procedure if the following conditions are met:

    • the employer must employ at least 20 employees,
    • the cause attributable to the employer, justifying the termination of the employment relationship or its termination by agreement of the parties by the employer, is the sole reason for termination of the contract,
    • redundancies with the employer for a period not exceeding 30 days include a smaller number of employees than specified in art. 1 of the Act (i.e. 10 employees if they employ less than 100 employees, 10% of employees if they employ at least 100 but less than 300 employees, or 30 employees if they employ at least 300 or more employees).

    Thus, the lack of the required employment of at least 20 employees by the employer causes that Art. 10 will not apply to such an employer at all.

    The employer is obliged to consult the intention to carry out a collective dismissal with the trade unions operating at the employer's. In connection with the termination of employment under the group dismissal, the employee is entitled to severance pay in the amount of:

    • a one-month salary, if the employee has been employed by a given employer for less than 2 years,
    • two-month salary, if the employee has been employed by a given employer for 2 to 8 years,
    • three-month salary, if the employee has been employed by a given employer for over 8 years.

    It should be remembered that the amount of the severance pay may not exceed the amount of 15 times the minimum wage applicable on the date of termination of employment.

    The Labor Code, as to the termination of an employment contract, does not explicitly indicate the possibility of doing so through, inter alia, email message. However, reference should be made to the Civil Code, according to which a declaration of will submitted in electronic form is equivalent to a declaration of will submitted in writing, while to maintain the electronic form of a legal transaction, it is sufficient to submit a declaration of will in electronic form and affix it with a qualified electronic signature (Art. 781 of the Civil Code). Therefore, it is possible for the employer to terminate the employment contract by e-mail if it is signed with a qualified electronic signature. Such a position was also adopted by the Supreme Court in its judgment of 24 August 2009 (file reference number I PK 58/09), which stated that "the termination sent by e-mail will be effective only if it is signed with an e-signature. ".

    May 2021

    Employment contract and civil law contracts

    The employment relationship is characterized by certain features that distinguish it from civil law contracts (e.g. mandate contracts).

    As defined in Art. 22 § 1 of the Labor Code, the employee is obliged to perform work, and the employer is obliged to hire the employee for remuneration.

    In the judgment of 23 January 2020, II PK 228/18, the Supreme Court mentioned such constitutive features of the employment relationship as: voluntary, continuous personal work performance, subordination, performance of work for an employer bearing the risk related to employment and its paid nature . These features distinguish an employment relationship from other forms of employment.

    A characteristic feature of the employment relationship is the principle of risk borne by the employer. It means that the employer bears the negative consequences not only of the inappropriate selection of employees, but also of no-fault mistakes made by the employee. Therefore, the employer is forced to bear the losses resulting from the employee's lack of resourcefulness or the lack of proper preparation for work.

    The requirement to perform work in person in the employment relationship means a close connection of the employment relationship with a specific person and his personal qualities, for example, qualifications, conscientiousness, diligence, reaching an appropriate age. The personality trait of the work performance justifies a special trust between the parties.

    The Supreme Court also emphasized that the employment contract is a due diligence contract. In it, the employee undertakes to perform his duties diligently, and not to achieve a specific result. This means that, unlike a contract of mandate or other civil law contracts, in an employment relationship, liability for the consequences of culpable non-performance or improper performance of employee duties is assessed through the prism of diligence and not achieving a specific result.

    The employer is also obliged to organize work, both in a way ensuring full use of working time as well as in a manner leading to the achievement by employees of high productivity and appropriate quality of work. It is not possible to assign to an employee, even employed in an independent position, sole responsibility for damage falling within the economic risk of the employer. This would mean a disproportionate transfer of the risk of the activity conducted by the employer to the employee.

    The Supreme Court emphasized that the employee subordination that characterizes the employment relationship does not occur in obligatory civil law relations. It is related to the managerial powers of the employer, e.g. to issue orders in accordance with Art. 100 § 1 of the Labor Code This type of legal instruments is not available to entities ordering the performance of specific activities under civil law employment relationships.

    The Supreme Court pointed out that it is up to the parties to choose the legal relationship they choose, but the choice of the employment relationship as the basis for employment requires adopting its properties.

    April 2021

    Remuneration regulations and work regulations

    In addition to statutes, i.e. primarily the Labor Code, regulations and statutes are also sources of labor law. The following should be mentioned among the statutory sources of labor law:

    • work regulations,
    • payroll regulations,
    • bonus and reward regulations,
    • rules of corporate social activity.

    These acts are created internally, thanks to which companies are able to operate according to the rules they have set themselves. However, it should be remembered that the regulations may not introduce provisions less favorable to the employee than it results from the generally applicable labor law.

    The work regulations establish the organization and order in the work process and the related rights and obligations of the employer and employees. Work regulations should regulate, in particular, work organization, working time systems and schedules, night time, date, place, time and frequency of remuneration payment, lists of jobs prohibited for women and adolescents, lists of light work permitted for adolescents, health and safety conditions at work. The work regulations should also contain an informative part, which indicates the applied sanctions.

    On the other hand, the remuneration regulations specify the conditions for remunerating employees and granting other work-related benefits.

    Both the work regulations and the remuneration regulations are established by the employer employing at least 50 employees, if he or she is not covered by the collective labor agreement determining the subject matter of these regulations. An employer who employs a smaller number of employees may also introduce work regulations.

    An important aspect of introducing regulations in workplaces is consultation with the trade union organization. If the employer has such an organization, he must always agree with it on the content of the regulations to be introduced.

    It should be emphasized that an employee cannot start work before reading the content of the work regulations. The employer is obliged to present it to the employee (Article 1043 § 2 of the Labor Code).

    March 2021

    Staff training

    Chapter VIII, Section X of the Labor Code, regulates the rules of conducting employee training. Due to their function of improving the qualifications of employees, they play an important role in the development of the workplace, which is desirable both for the employer and the employees themselves.

    One of the employer's obligations is to help employees improve their professional qualifications. This obligation can be fulfilled not only by referring employees to various types of training, courses or studies, but also by not disturbing employees who undertook education on their own initiative.

    The employer has the option to send employees for on-the-job training. In this case, they receive remuneration for this period in the usual manner, and the training course is treated as a form of fulfilling professional duties.

    The employer may also delegate subordinates to training during non-working days. If the purpose of training is to acquire or improve skills that an employee will use both at work and outside of work, it is usually not included in working time.

    Participation in it is voluntary and the employer does not pay remuneration for it. Such training does not entitle you to pick up your day off at another time.

    Another type of training during non-working days are those that are directly related to the professional duties performed. An important feature of such trainings is their obligatory nature - participation in them is an official order. Then the training is included in the working time.

    One of the most important training courses we may encounter in the workplace is hygiene and workplace training. Pursuant to the provisions of the Labor Code (Article 2373), the employer is obliged to provide training to the employee in this regard before allowing him to work. He is also obliged to conduct periodic trainings. An exception to the training obligation is the case of an employee in an administrative and office position, when the type of predominant activity of the employer within the meaning of the provisions on public statistics is in the group of activities for which a risk category of no higher than three has been established.

    It must not be forgotten that the employer is also obliged to undergo training in the field of occupational health and safety to the extent necessary to perform his duties. Moreover, this training should be repeated periodically.

    In addition, it is worth emphasizing that the employee must not be allowed to work for which he or she does not have the required qualifications or the necessary skills, as well as sufficient knowledge of the provisions and principles of health and safety at work. Occupational health and safety training always takes place during work and at the employer's expense.

    KS

    February 2021

    The obligation to indicate the criteria for selecting an employee for dismissal

    The Supreme Court in its judgment of 2 June 2017 (file no. III PK 114/16) indicated that in the statement on the termination of an employment contract concluded for an indefinite period due to the liquidation of one of the analogous positions, the employer should indicate the reason for selecting the employee for dismissal. This obligation results from Art. 30 § 4 of the Labor Code. It is not necessary to indicate the reason only if the reason for the dismissal of that particular employee is obvious or known to the employee. It is important that in the statement on termination of the employment contract, the employer indicates the adopted criteria for selecting an employee to be dismissed and describes the procedure for applying these criteria.

    Specifying the criteria for selecting an employee to be dismissed is the basis for an attempt to challenge the validity of the dismissal made by the employer. This is a supplement to the generally defined reason for termination of the employment relationship in the form of organizational changes leading to the liquidation of the job, which allows the employee to understand why he was given a declaration of will to this effect (judgment of the Supreme Court of April 16, 2019, ref. I PK 25/18).

    In the judgment of 5 March 2019 (reference number I BP 10/17), the Supreme Court recalled that the criteria for selecting employees for dismissal are not cataloged in any generally applicable labor law provision. A court hearing an employee's appeal against a dismissal made as part of a reduction in employment may not restrict the employer's personnel policy and impose its own set of these criteria on the employer.

    However, the selection of people with whom the employment relationship is to be terminated as part of individual or group layoffs cannot be arbitrary and arbitrary. The legal framework for the employer's decision is provided in Art. 94 point 9 and article. 113 and art. 183a of the Labor Code, ordering the employer to apply objective and fair criteria for assessing employees and the results of their work also when selecting people qualified for dismissal. Therefore, the most important criteria for selection for dismissal should be: the employee's suitability for work, his qualifications and professional skills, professional experience, seniority and work history as well as availability to the employer.

    KS

    January 2021

    Equivalence for annual leave for an employee dismissed from discipline

    According to Art. 52 § 1 of the Labor Code, the employer may terminate the contract without notice due to the employee's fault. The reasons for dismissing an employee in this way are:

    • an employee committing a crime during the term of the employment contract which prevents him from being employed in the position he holds, if the crime is obvious or has been confirmed by a final judgment;
    • serious breach of employee duties;
    • culpable by the employee of losing the rights necessary to perform work in the position held.

    Disciplinary dismissed employee may still have unused holiday leave. Despite the employee's fault in his dismissal, the leave is not lost. It should be emphasized that on the day of termination of employment, the employee's right to a vacation in kind transforms into the right to a cash equivalent for unused vacation leave.The employer is therefore obliged to pay an equivalent for unused vacation due to the lack of a notice period. The equivalent is calculated according to the rules of the Regulation of the Minister of Labor and Social Policy of January 8, 1997 on the detailed rules for granting holiday leave, determining and paying remuneration for the holiday and cash equivalent for the holiday.

    Receiving an equivalent for vacation, just like receiving the vacation itself, is not related to the form of termination of employment.

    KS

    December 2020

    Cutting jobs in the reform of public administration offices and institutions

    KOWR replaced the combined Agricultural Property Agency and the Agricultural Market Agency as of September 1, 2017. In connection with the reorganization, the minister responsible for rural development appointed the Plenipotentiary for the establishment of the KOWR. The plenipotentiary proposed employment to selected employees of both Agencies in the KOWR, specifying the working and pay conditions, including the place of employment. The lack of such a proposal or its non-acceptance resulted in the termination of the employment relationship on August 31, 2017. About a thousand people lost their public jobs then.

    A claim for compensation for unlawful termination of employment was filed by a driver who did not receive a job offer at the National Center for Agricultural Support. As compensation in connection with termination of employment for reasons relating to the employer, he received 16 thousand. PLN. KOWR appealed against the judgment.

    The Supreme Court in its judgment of September 26, 2019 (file no. III PK 126/18) stated that the government has no right to terminate jobs by operation of law when reforming offices and public administration institutions. According to the Supreme Court, one cannot freely decide who is to keep the job in the transformed office. The principles of equal treatment of employees resulting from the Labor Code should be applied.

    The Supreme Court referred to the jurisprudence of the European Court of Human Rights and the Constitution of the Republic of Poland, stressing that everyone is equal before the law and has the right to equal treatment by public authorities; and no one may be discriminated against in political, social or economic life for any reason. The settlement of this case was determined by a discriminatory thread - the driver claimed that the failure to submit a job offer to KOWR was due to his age. Nevertheless, the Supreme Court stressed that even if the discrimination did not occur in the case, it would still be possible to consider whether the reason for not submitting the job offer was rational and objective. In this regard, it is possible to use the dismissal selection pattern for dismissals for reasons not attributable to the employee.

    KS

    November 2020

    Fake employment contract and reimbursement of unduly received benefits

    The Supreme Court dealt with the extortion of over 39 thousand from ZUS PLN for an allowance paid on the basis of an apparent employment contract. The payer and the insured entered into an employment contract with no actual intention of establishing an employment relationship and performing work, and the insured person did not perform work under this contract. The pension authority issued a decision obliging the contribution payer to return the sickness benefit paid in accordance with the principle resulting from Art. 84 sec. 1 of the Act of October 13, 1998 on the social insurance system.

    The text of the act states that the obligation to return an unduly collected benefit lies with the person who collected it. The return of unduly collected benefits may be claimed from the contribution payer or another entity, if the collection of undue benefits was caused by the submission of false data by the contribution payer or another entity affecting the right to benefits or their amount.

    In the resolution of the Supreme Court of 11 December 2019 (reference number III UZP 7/19), it was found that the pension body may select the contribution payer as the entity obliged to return the benefit unduly received by the recipient. The judges decided that ZUS may claim the money back directly from the entrepreneur, it does not have to try to claim the refund from the recipient.

    The Supreme Court pointed out that recovery from beneficiaries may be ineffective. Obtaining a refund from the payer is easier in practice, as they are often employers conducting extensive business activity. If they are responsible for the payment of the undue benefit from ZUS, they should be used to claim its return. ZUS is obliged to ensure the effective recovery of unduly received benefits from the Social Insurance Fund, because it is in the interest of other insured persons and the state.

    Therefore, the employer must return to ZUS the benefit paid on the basis of a fictitious contract with the employee, which, according to the judges, should curb the abuse of fictitious contracts at the expense of the insured who honestly pay their contributions to ZUS.

    KS


    October 2020

    Replacing a B2B contract with a full-time job

    In its decision of September 18, 2019 (file reference number I PK 142/18), the Supreme Court ruled that the labor court may replace a business to business contract with a full-time job.

    The case concerned a woman who concluded a contract with a company managing a retail chain, under which she was to run a shop. The woman provided services as a self-employed entrepreneur. The contract signed by the parties specified not only the rules of running a business, but also the time and place of work and a fixed monthly remuneration for the claimant. It did not bear any economic risk, including financial, technical and personal related to the business - this risk was assumed by the defendant company. In addition, the store manager did not make any outlays or investments, and hired employees with the consent and control of the company. Moreover, the claimant herself had a fixed monthly salary. After some time, the woman asked the court to establish the employment relationship.

    The Supreme Court emphasized that in the current market conditions it is permissible for a retail chain to conclude civil law contracts with another entrepreneur to run a store. However, it is from the manner in which the contract is performed that its nature should be inferred. Therefore, it is necessary to determine whether we are dealing with a business relationship on the basis of the manner of performing the contract.

    The Supreme Court ruled that the manager of a sportswear store may be considered an employee, although she was formally engaged in business activity, if it turned out that all decisions had to be consulted with the regional director. This means that the entrepreneur will have to pay extra ZUS contributions for the employee with whom he fictitiously changed the job into business activity.

    KS


    September 2020

    Reprehensible behavior of an employee and the prohibition of competition

    Labor law provisions distinguish two types of the so-called non-competition. The first is the prohibition of any competitive activity during the employment relationship. Such a contract may be concluded by the employer with any employee.

    The second non-competition clause may apply to an employee after termination of employment. The employer may then prohibit the performance of a competitive activity only by an employee who has access to particularly important information, the disclosure of which could expose the employer to damage.

    Non-competition agreement, in addition to, inter alia, the scope of competitive activity which the employee should refrain from or the duration of this prohibition, should include information on the amount of compensation for compliance with the non-competition clause and the date and method of its payment. Compensation under such a contract must amount to at least 25% of the wage received by the employee before the termination of the employment relationship.

    In the judgment of 4 July 2019 (III PK 85/18), the Supreme Court stated that in some cases the payment of compensation for non-competition after termination of employment should not take place. This will happen when the employee's behavior is deemed to violate the socio-economic purpose of the law or the principle of social coexistence.

    The employee's behavior is reprehensible and meets these conditions, e.g. in the event that he has committed theft of property. Then, the payment of non-competition compensation will be considered an abuse of the law. It is a precondition, however, that his act is related to a non-competition clause.

    KS


    August 2020

    Overlapping Worker Compensation Claims

    If the employer terminates the contract illegally, the employee is entitled to compensation. Art. 60 of the Labor Code provides for compensation for unlawful termination of an employment contract during the notice period. This provision states that if the employer terminated the employment contract during the notice period in breach of the provisions on the termination of employment contracts without notice, the employee is entitled to compensation.

    Whereas Art. 45 § 1 stipulates that if it is established that the termination of an employment contract concluded for an indefinite period is unjustified or violates the provisions on the termination of employment contracts, the labor court adjudicates, inter alia, on compensation.

    In the case considered by the Supreme Court, the employer made two unilateral legal actions aimed at terminating the employment contract. First, he terminated the legal bond, and during the period of notice he dissolved it. Both actions were illegal. The employee sought compensation due to the termination of the employment contract and compensation for the termination of the employment contract without notice.

    The District Court asked the Supreme Court to resolve the legal issue of whether an employee with whom the employer terminated the employment contract without notice in violation of the provisions on termination of contracts in this manner during the period of notice of the contract made earlier, also in violation of the provisions on termination of employment contracts under the procedure notice, may claim compensation for both actions of the employer.

    The Supreme Court in a resolution of April 4, 2019 (file No. III PZP 2/19) stated that in the event of multiple compensation claims, the employee is entitled to not one compensation, but as many claims as defective activities were performed by the employer. This does not mean, however, that both damages are to be awarded in full.

    The Supreme Court pointed out that in certain situations an employee will be entitled to only one compensation (this happens when the termination of the contract under Art.52 § 1 of the Labor Code took place on the last day of the notice) or two full compensation (if the immediate termination of the employment contract will make it impossible to fully comply with the notice period.


    July 2020

    Exemption from the obligation to work

    The issue considered by the Supreme Court in the judgment of 5 September 2019 with reference number III PK 96/18 concerns whether the employer has the right to unilaterally withdraw the dismissal without the consent of the employee.

    In the case, the employer terminated the employee's employment contract with three months' notice. At the same time, he dismissed the employee from the obligation to work. Due to the fact that the employee was entitled to unused vacation, the employer sent him a notice of vacation leave during the notice. In practice, this meant the withdrawal of the exemption from the obligation to work.

    Both the right to dismissal from work and the obligation to use annual leave relate to the notice period. According to the jurisprudence of the Supreme Court, the sense of these provisions is that the appearance of the notice "relaxes" the protection standards, in the first case it repeals the employee's right to work, in the second case it gives the opportunity to unilaterally refer the employee to vacation leave.

    The Supreme Court agreed with the position of the District Court that it is not possible to take rest leave and exemption from the obligation to work at the same time. However, granting leave cannot be qualified as a simultaneous interruption of the employee's dismissal from the obligation to work. As part of managerial rights, the employer has the right to oblige the employee to perform work and grant him a vacation leave.

    The Supreme Court found that withdrawal of the exemption from the obligation to perform work is not a declaration of will within the meaning of the Civil Code. Under the Labor Code, the employer has almost complete freedom to decide whether a given employee will be exempted from the obligation to work during the notice period. The employee's consent is not required in this case.

    A person exempt from the obligation to perform work remains an employee. The employer has the right to unilaterally order the employee to return to work, and the employee, as a rule, cannot refuse to carry out such an order.


    June 2020

    Compensation to the employer for the termination of an employment contract by the employee without notice

    In the case in which the Supreme Court ruled on 18 March 2015, the respondent employee filed a letter terminating the employment contract without notice indicating as the reason for termination of employment the non-payment of remuneration for a month and delays in payment of remuneration for 2 months.

    In accordance with the provisions of the Labor Code, an employee, similarly to an employer, has the statutory right to terminate employment immediately in justified cases. For such termination to be justified, it must meet one of the following conditions:

    • a medical certificate was issued stating the harmful effect of the work on the employee's health, and the employer will not transfer him within the period specified in the medical certificate to another job, appropriate for his health and professional qualifications;
    • the employer has seriously violated the basic obligations towards the employee.

    In the jurisprudence of the Supreme Court it is agreed that if the employer repeatedly ceases to pay remuneration for work on subsequent payment dates, the employee has an open deadline to submit a declaration of termination of the employment contract without notice for a month from the date of becoming aware of the last not paying him due remuneration.

    In this case, the employee is entitled to compensation in the amount of remuneration for the period of notice. In the event of termination of a fixed-term employment contract, compensation shall be payable in the amount of time for which the contract was to last, but not more than for the period of notice.

    The premise for the termination of an employment contract in this mode is both the employer's complete cessation of payment of remuneration and the payment of remuneration late or at a reduced amount. An employee's declaration of intent may lead to termination of employment even if the employer has not actually committed such an infringement. In this way, employees acting in bad faith can achieve the goal of quick termination of employment.

    The Labor Code regulates the protection of such an employer. He has the right to claim compensation in the event that an employee who wants to comply with formal requirements cites the invented circumstances to justify termination of the contract. When seeking compensation, the employer should show that he has not committed a serious breach of his basic obligations to the employee. He may do so by indicating that he did not breach any obligations or that he did breach his obligations, but they were not of a basic nature or the breach of a basic obligation was not of a serious nature.

    The employer's situation will be more difficult if the employee does not give any reason for terminating the contract. In this case, the employer cannot claim damages under the Labor Code and the only thing he can do is claim damages under the Civil Code.

    KS


    May 2020

    Does the employer have the right to dismiss an employee based on a sobriety test?

    In case I PK 194/17 of 4 December 2018, the applicant was dismissed from work under disciplinary procedure without notice in connection with a sobriety test carried out at the company, which showed him 2.8 per mil of alcohol in his blood. The applicant contested the possibility of drawing legal effects from the result of such an examination. The Supreme Court judges had no doubt that the employer's behavior was inappropriate.

    Undoubtedly, being an employee in the place and time of work in a state of drunkenness or after using alcohol may constitute a serious violation of basic employee duties. The employer is obliged not to allow an employee who is reasonably suspected of such circumstances to work. In addition to observing the employee, it is permissible to use the method of subjecting the employee to a test to determine the alcohol content in his body - for example with a breathalyzer.

    The result of such a test confirming the content of alcohol in the blood can be treated as the basis of actual presumptions that the employee is in a state of alcohol use or intoxication. If the test is carried out with a proprietary device, it is recommended that you always make a report on the employee's sobriety check. The report may have significant evidential value in the event of a dispute between the employer and employee regarding the assessment of the occurrence. Moreover, such an examination can only be carried out with the consent of the employee being tested.

    Submitting an employee to an sobriety tester available from the employer does not currently release the employer from calling an authorized body appointed to protect public order to formally conduct such an examination. The sobriety of an employee may be examined only by an authorized body appointed to protect public order (police officers). This examination should take place at the employer's request, if the employee does not make such a request.

    In any situation, the obligation to prove the reason for the termination of the employment contract without notice due to the fault of the employee, and thus his or her intoxication, is borne by the employer,

    It is primarily in the interest of the employer to determine whether the employee is able to work or whether he is in a state that precludes his benefit because of alcohol consumption. It is in the interest of the employer to call an authorized body appointed to protect public order in order to carry out an on-site examination of the employee's sobriety at the workplace. A company breathalyser test may only be of an ancillary nature.


    April 2020

    Tips

    Tips are accepted benefits in practice. Can they be qualified as part of the employee's pay? This issue was raised by the Supreme Court in its judgment of August 6, 2019 (II PK 122/18).

    Claimant A. S. was employed by the defendant as a dealer. The employment contract sets a minimum wage and allowance for night work. The tips that employees received from customers were divided according to the seniority of the entire staff. Accordingly, tips constituted a significant proportion of all employees' remuneration. The plaintiff after many years of work received a notice of dismissal and was entitled to severance pay in the amount of three months' salary.

    Severance pay did not include tips, only the amount of three salaries. Due to this, the claimant demanded payment of compensation for lost benefits due to employment relationship due to tips.

    The Supreme Court emphasized that the employment contract produces effects not only expressed in it, but also those that result from the Act, the principles of social coexistence and established customs. In addition, in the absence of explicit statutory regulation, the usual practice is decisive, in this case the practice of additional remuneration of employees from the pool of registered and collected tips. The Supreme Court found that limiting the long-term employee's remuneration to the minimum wage alone was clearly unacceptable, as it would constitute a low remuneration. It is important that the disputed income in the form of a percentage share of the tip would not have arisen without the work done by the employees.

    The Supreme Court mentioned that the system of obtaining funds from tips paid to employees organized by the employer allows offering them lower basic salaries. Undoubtedly, a source of the employer's obligation to pay an additional bonus equivalent for work arose, which significantly supplements the basic remuneration set at the low level of the minimum remuneration for work.

    The Supreme Court ruling therefore decides that the percentage share in the fund raised from tips is a claim against the employer. Tips are therefore a source of payroll obligations and the employee is fully entitled to this part of their remuneration.


    March 2020

    Who can create and join trade unions?

    On January 1, 2019, the amendment to the Act on Trade Unions entered into force, which significantly expanded the group of entities authorized to create and join trade unions. Until now, they were only employees, i.e. persons employed under an employment contract, appointment, selection, appointment or cooperative employment contract, as well as members of agricultural production cooperatives and persons performing work on the basis of an agency contract. The amendment gave the right to create and join trade unions to persons performing paid work. This means that they must be paid for their work. The regulations do not specify a minimum amount of remuneration that would qualify such a person to be able to form and join such unions.

    On this basis, persons employed on the basis of civil law contracts (e.g. commission contracts, service contracts) may join the unions. Joining a union means granting union rights, e.g. employment protection, the right to dismiss from work while maintaining remuneration.

    Unpaid persons (volunteers, trainees and other persons) have the right to join unions only in cases and under the conditions set out in the statutes of the unions. They cannot form such a relationship themselves.

    It is worth mentioning that the amendment was caused by the judgment of the Constitutional Tribunal of 2 June 2015 (reference number K 1/13), which stated that limiting the possibilities of creating and joining trade unions only to employees is unconstitutional.

    [legal status: March 2020]


    February 2020

    An accident at work or on the way to work

    The Supreme Court ruled that if an employee is employed during task-time work, when commuting to work during a telephone conversation with a subordinate employee, he obliged her to prepare documents that he intended to use immediately upon arrival at the employer's premises had an accident, it means that such an accident is an accident at work and not an accident on the way to work.

    Judgment of the Supreme Court of 17 January 2019 (reference number II PK 268/17)


    January 2020

    Employment of a partner and board member on the basis of an employment contract.

    In recent weeks, the number of employment contracts (and related social security rights) questioned by the Social Insurance Institution has increased. This occurs when the company employed the sole shareholder or dominant partner (holding the majority of shares), who is also a member of the management board. Despite the position presented by ZUS, the jurisprudence of the Supreme Court in this respect is not clear-cut and allows for the possibility of lawful (not affected by invalidity) employment in such a situation.

    If you find yourself in the situation described above - we will help you.