NEWS

Labor law

ATTENTION!
automatic translation from Polish

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.