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