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.