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.)