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.