Author: kjslegal
Alimony and a grown-up children
he obligation to pay alimony usually takes place before the District Court in a divorce case, when parental authority is granted to one parent, and the other parent – with whom the child no longer lives after the divorce – is obliged to pay alimony to the child.
While there is a fairly firmly entrenched belief in society that alimony terminates when a child comes of age, this is not true. Alimony does not terminate by itself. In order to terminate the obligation to pay alimony, it is necessary to establish a case in court, or more precisely: to file a lawsuit to terminate the alimony obligation.
Such a lawsuit is filed in the District Court of the Family and Juvenile Division with jurisdiction over the place of residence of the “child”. It might be in Poland or abroad. The lawsuit should be accompanied by the judgment from which the obligation to pay alimony is imposed.
The lawsuit should indicate the date on which you think the alimony obligation should end. This can be the date of the lawsuit or an earlier date. The lawsuit should be justified.
According to Article 133 § 1 ) of the Family and Guardianship Code, parents are obliged to provide alimony to a child who is not yet able to support himself, unless the income from the child’s property is sufficient to cover the costs of his maintenance and upbringing.
The cancellation of alimony is therefore justified by the fact that the “child” is out of school and working, and therefore has been able to support himself for a certain period of time (date of day).
This obligation is not limited by any rigid deadline, and in particular – by the date when the alimony recipient reaches the age of majority. It is also not tied to the degree of education in the sense that it does not cease when the alimony recipient reaches a certain degree of primary or secondary education. The only authoritative circumstance on which the continuance or termination of this obligation depends is whether the child can support himself, it being understood that this cannot be expected of a minor child. For this reason, with regard to children who have reached the age of majority, consideration should be given to whether they show a desire to continue their education and whether their personal abilities and character traits allow them to actually continue their education. A contrary position would lead to hindering, or at least significantly hindering, the child’s further development, and this by depriving him of the material means necessary to continue his education after reaching the age of majority, and would therefore be in conflict with the aforementioned fundamental parental duty.
Notwithstanding the above, under Article 135 § 3 of the Family and Guardianship Code, parents may evade alimony payments to a child of full age if they are combined with undue hardship for them or if the child does not make efforts to obtain the possibility of self-support. This means that if the person obliged to pay alimony is in a difficult personal or financial situation, e.g. after a serious illness, without the right to a pension, does not work anywhere, basically subsists on benefits received from social assistance and the help of the family with whom he lives, then – despite the existence of needs on the part of the child – alimony in such a situation may be rescinded.
If you want to learn more about divorce, read this article.
For French speakers click here.
Attorney Joanna Suslo
KJS Legal Kancelaria Adwokacka in Wroclaw
Tel. 668-841-990
Advocate – Wroclaw – KJS Legal
Accident at work and dismissal
If an employee participates in an accident at work, such employee may receive sickness benefit (for a period of 182 days) and then a rehabilitation benefit (for a period of 3 months). If, after the end of the rehabilitation benefit, i.e. the first day after the expiry of 3 months from receiving this benefit, the employee who suffered an accident shows up at the workplace, then the employer has no right to dismiss him.
However, if such an employee came to work as early as 2 days after the end of receiving a 3-month rehabilitation benefit or begins to receive a rehabilitation benefit for more than 3 months, in such a situation the employer may dismiss him without notice.
In the event of dismissal without notice (rehabilitation benefit over 3 months or failure to appear at work on the first day after the end of the benefit), if up to 6 months after termination of employment, the employee who suffered an accident will recover and report return to work, then the employer is obliged to employ him again in the position he performed.
Another issue if the employee as a result of an accident becomes unable to perform his current work but is able to perform some other work – then the employer has no right to dismiss him, but must transfer to perform this other work. To achieve this, at the latest by 1 day after the end of receiving the 3-month rehabilitation benefit, the employee must obtain a preventive medical decision on the inability to perform work due to an accident – only then he cannot be dismissed by the employer but will be transferred to another job corresponding to his qualifications . In this situation, the employer can only reduce the salary of such an employee (transfer to a lower position), but for the first 6 months the employee will be entitled to a compensatory supplement to the salary – this means that the salary will be the same as before but only for the first half a year.
In summary, it should be pointed out that it is possible to dismiss an employee as a result of his faultless presence at work (illness, accident), but only after the periods specified in the Labor Code in Poland. Dismissal without circumvention of protection periods should be considered unlawful and result in the employee’s claims against the employer being updated. In such a case, compensation may also be claimed for night and overtime, as well as to require the existence of an employment relationship to be established, in particular when the employment contract has been concluded orally.
KSJ Legal Law Firm has extensive experience in matters of labor law, including those regarding unjustified or fictitious termination of the employment contract. We advise at every stage of the proceedings, from the preparation of a legal opinion to obtaining a final decision before the court of second instance.
Labour Lawyer Joanna Susło
KJS Legal Law Firm in Wroclaw
Tel. 668-841-990
Advocate – Wrocław – KJS Legal – Lawyer
Deadline for termination due to employee’s fault?
In accordance with art. 52 § 2 of the Labor Code in Poland, termination of the employment contract without notice due to the fault of the employee may not take place after 1 month from the employer being aware of the circumstances justifying the termination of the contract.
According to the cited provision, the employer has one month to make a decision on dismissal. Thus, in the fifth week of the incident, the employer cannot terminate the contract on the employee’s fault. If such termination occurs, however, the employee’s claims against the employer will be updated.
Since when do we count the 1 month deadline? This time limit begins to run from the day on which the person authorized to terminate the employment contract or another person belonging – in the light of the organizational chart – to the management of the workplace receives information about such conduct of the employee.
In other words, the term specified in art. 52 § 2 of the Labor Code in Poland did not start running if another employee who was not authorized to terminate the employment contract learned about the circumstances justifying the termination of the employment contract. By the phrase “obtaining by the workplace information” should be understood messages sufficiently tested so that the manager of the workplace can gain a reasonable belief about the wrongdoing of the employee. This may require checking and hearing the employee being charged.
Therefore, if the employer checks the received information immediately and efficiently, in such a situation the deadline should be calculated from the moment of completing the internal verification procedure, verifying the information obtained by the employer about the employee’s behavior.
KSJ Legal Law Firm has extensive experience in matters of labor law, including those regarding unjustified or fictitious termination of the employment contract. We advise at every stage of the proceedings, from the preparation of a legal opinion to obtaining a final decision before the court of second instance.
Labour Lawyer Joanna Susło
KJS Legal Law Firm in Wrocław
Tel. 668-841-990
Advocate – Wrocław – KJS Legal – Lawyer
Wedding in England and divorce in Poland – is it possible?
The basis for a divorce decree by a Polish court is art. 3 clause 1 letter b) of Council Regulation (EC) No 2201/2003 of 27 November 2003 regarding jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility, repealing Regulation (EC) No 1347/2000, pursuant to which “In matters of divorce, separation or annulment of marriage, the courts of the Member State of which both spouses are nationals have jurisdiction.”
Therefore, if both spouses have Polish citizenship, the Polish court will be competent. Divorce cases are always heard by the District Court. There are several of them in Poland. Question to which to submit a lawsuit when the spouses have never lived in Poland?
In the light of art. 41 of the Code of Civil Procedure in Poland: “An action arising out of a marriage relationship shall only be brought before the court in whose district the spouses had their last place of residence, if at least one of them in that district is still domiciled or habitually resident. In the absence of such a basis, only the court of the defendant’s domicile is competent, and if there is no such ground, the court of the plaintiff’s place of residence.”
It follows from the provision that when the parties never lived together in Poland, e.g. they met in England, where they got married and lived abroad throughout the marriage, then the court of the defendant’s domicile is competent. However, if the defendant does not live in Poland, the court of the plaintiff’s place of residence has jurisdiction. Provided, however, that the plaintiff lives in Poland.
Should the claimant be registered in Poland to meet the criterion of “residence” in Poland? No. Just being in this place is enough.
If, however, the court recognizes that the plaintiff only “pretends” that he lives in Poland, and thus finds that pursuant to the provisions of the Code it is not possible to determine local jurisdiction in the light of the circumstances of the case, the case will still be resolved in Poland, with the difference, that the District Court filed for divorce will apply to the Supreme Court to designate the District Court as the court before which an action should be brought pursuant to art. 45 § 2 of the Code of Civil Procedure in Poland.
To speed up the procedure, before filing a divorce petition, you can first apply to the Supreme Court in Poland to designate a particular District Court as competent to hear your case. In such a conclusion, it is worth pointing out the circumstances that support entrusting a divorce case to a given District Court, among others purposeful reasons (the parties have been together in a given place many times, all or most of the witnesses have their place of residence in the area, the place is known to the parties, etc.).
KSJ Legal Law Firm successfully conducts family law cases, including divorce and legal separation, also when one of the spouses or two is abroad. We advise at every stage of the proceedings, from the preparation of a legal opinion to obtaining a final decision before the court of second instance.
Why should you entrust us with a divorce case in Poland?
We encourage you to visit our blog specialized in Divorce Law:
https://divorce-online-poland.eu
Tel. 668-841-990
Advocate – Wrocław – Lawyer
Travelers’ claims in the event of a wasted vacation
In the light of art. 50 of the Act on tourist events and related tourist services in Poland, the traveler is entitled to a price reduction for each period during which a tourist event is found to be inconsistent with the contract, unless it was caused by the sole act or omission of the traveler (paragraph 1). The traveler is entitled to compensation or compensation for damage or harm suffered as a result of non-compliance of the package with the contract. The tour operator shall immediately pay compensation or redress (paragraph 2).
It follows from the above provision that in the event of deficiencies during organized holidays (e.g. lower standard of trips, forced accommodation as a result of so-called “overbooking”, occurrence of food poisoning and allergies, etc.), the traveler may request the tour operator (travel agency) recuperates in the form of price reduction, compensation or redress.
In Poland in 2003, it was recognized by the UOKiK so-called “The Frankfurt table”, which is used as the basis for settling disputes between travel agents and clients. The table can be found in the interval. The Frankfurt table shows examples of weaknesses in the performance of a tourist event by a travel agency and the corresponding percentage (%) reduction in the price of the event. By way of example:
- too small room size (according to the table above, it should result in a reduction of the tour price from 5%),
- damage and cracks in the room and on the hotel premises (according to the above table from 10%),
- vermin, ubiquitous dirt (according to the above table from 10%),
- damaged bathroom, including shower (according to the above table from 5%),
- no systematic cleaning (according to the above table from 10%),
- insufficient number of meals and repetitive, not very varied cold food, no variety of fruit (according to the table above from 5%),
- spoiled meals (according to the above table from 5%),
- dirty dishes, uncleaned cutlery (according to the above table from 5%),
- equipment defects – lower class (according to the above table from 10%).
The amount of price reduction / compensation that a traveler requires from a travel agency should not exceed the values resulting from the “Frankfurt table”, but after adding up the individual shortcomings it may turn out that the traveler should receive a 100% refund for the tourist event.
Based on Article. 50 paragraph 2 of the Act on tourist events and related tourist services, the traveler is also entitled to compensation for any damage suffered as a result of non-compliance. Recital 34 in the preamble to Directive 2015/2302 also states that compensation of damage suffered by a traveler due to the non-conformity of the travel service should also include non-pecuniary damage, such as loss of travel pleasure due to serious problems in the service. The fact that the provisions guarantee travelers both the right to reduce the price value and compensation was also recognized by the Supreme Court (see resolution of the Supreme Court – Civil Chamber of November 19, 2010, III CZP 79/10).
Compensation that may be payable to a traveler in connection with improper performance of the contract is an individual matter. The circumstances of the case will determine its amount. All situations that occurred during the holiday and caused the traveler negative feelings (e.g., a sense of loss of time, discomfort, fears and nerves instead of the desired relaxation and rest) will increase the amount of compensation.
In accordance with art. 50 paragraph 3 point 3 of the Act on tourist events and related tourist services in Poland, the tour operator may be released from liability for damage suffered by the traveler, if the non-compliance was caused by unavoidable and extraordinary circumstances. According to art. 4 clause 15 of the Act on Tourism and Related Travel Services, it was pointed out that unavoidable and extraordinary circumstances meant a situation beyond the control of the party claiming such a situation and whose effects could not have been avoided even if all reasonable measures had been taken. Recital 31 in the preamble to Directive 2015/2302 states that unavoidable and extraordinary circumstances may include, for example, ‘warfare, other serious security issues such as terrorism, significant threat to human health, such as an outbreak of a serious disease in a target travel location or natural disasters such as floods or earthquakes, or weather conditions preventing safe travel to the destination agreed in the package travel contract. “
Such a claim can be asserted before an electronic court in Poland. You can read about the operation of the electronic court in Poland here.
KSJ Legal Law Firm has extensive experience in matters related to the responsibility of tour operators. We advise at every stage of the proceedings, from the preparation of a legal opinion to obtaining a final decision before the court of second instance.
Lawyer Joanna Susło
KJS Legal Law Firm in Wrocław
Tel. 668-841-990
Advocate – Wrocław – KJS Legal – Lawyer
Oral termination of employment contract
In practice, there are many cases where the employer first terminates the employment contract in writing, and a few days later – in the second letter, gives the reason for the notice. Is this way of terminating the employment contract?
From the literal wording of the provision of art. 30 § 4 of the Labor Code – the employer should terminate the employment contract in the form of a statement in one letter. Therefore, it should be assumed that the employer violates this article if he gives notice in one letter and gives the reason in another – later.
However, in one of its judgments, the Supreme Court indicated that the employer may state the reason justifying termination of the employment contract in a separate letter delivered to the employee earlier or simultaneously with the letter containing the termination of the contract (reference number I PKN 331/98). Subsequently, an indication of the reason by the employer will be treated as no reason, otherwise the employment contract will be fictitiously terminated.
Another issue is the admissibility of terminating an employment contract orally. Although the Labor Code mentions written notice, it does not mean that oral dismissal is ineffective. It is worth remembering that the oral termination of the employment contract is effective and has legal effects, e.g. the notice period and the deadline for seeking redress against a former employer. The same applies to the possibility of verbally concluding an employment contract.
KSJ Legal Law Firm has extensive experience in matters of labor law, including those regarding unjustified or fictitious termination of the employment contract. We advise at every stage of the proceedings, from the preparation of a legal opinion to obtaining a final decision before the court of second instance.
Attorney-at-law Joanna Susło
KJS Legal Kancelaria Adwokacka – Law firm in Wrocław
Tel. 668-841-990
Advocate – Wrocław – Labour law
Extension of detention on remand
In accordance with art. 263 of the Code of Criminal Procedure (CCP), in preparatory proceedings the court, using pre-trial detention, means its term for a period of no more than 3 months. Extending the use of pre-trial detention for a longer period is possible if such necessity arises in connection with activities aimed at establishing or confirming the identity of the accused, performing evidentiary actions in a case of special complexity or outside the country, as well as deliberate delaying the proceedings by the accused.
The above-mentioned circumstances are enumerated and form a closed catalog. No other circumstance can justify extending pre-trial detention.
Pursuant to the decision of the Court of Appeal in Wrocław, 2nd Criminal Division of November 10, 2011 (reference number II AKz 477/11), “special complexity of the case” within the meaning of article 263 § 4 of the CCP can also be decided, and generally real cognitive difficulties in arriving at findings based on true facts, and at the same time such facts, without which it is impossible to achieve such a degree of certainty as to the suspect’s perpetration and guilt that conditions the termination of the proceedings and their discontinuation or bringing an indictment.
Considering the need and, at the same time, the admissibility of prolonging this preventive measure, must be limited only to the sphere of accusations against the suspect. The prosecutor’s formulation of the indefinite perspective of extending the scope of the proceedings in no way justifies the continuation of the preventive measure (vide: Court of Appeal in Katowice in the decision of 6 August 2008, reference number II AKp 115/08).
When making a decision on prolonging detention on remand, the court is obliged to examine whether it is sufficient to use a less painful preventive measure to secure the correct course of criminal proceedings.
It is worth pointing out, following the decision of the Court of Appeal in Warsaw of 20 January 2007 (reference number II AKp 6/07), that “the fact that the case concerns members of an organized criminal group and not all its members have been detained cannot indefinitely cause the prolongation of detention on remand against the accused ”.
KSJ Legal law firm successfully conducts criminal law cases, including unjustified detention and arrest. We advise at every stage of the proceedings, from the preparation of a legal opinion to obtaining a final decision before a second instance criminal court.
Attorney-at-law Joanna Susło
KJS Legal Kancelaria Adwokacka – Law firm in Wrocław
Tel. 668-841-990
Advocate – Wrocław – Criminal law
What is a loyalty clause to the employer?
The clause regarding the employee’s obligation to maintain confidentiality as to information obtained in connection with employment is in colloquial language the so-called “lojalka.”
It results from art. 100 § 2 point 4 of the Labor Code, according to which “an employee is obliged in particular to care for the good of the workplace, protect his property and keep secret information whose disclosure could expose the employer to damage”.
In the judgment of 11 September 2014 (reference number II PK 49/14), the Supreme Court stated that the creation by the employee on a private electronic medium of a collection of confidential information illustrating the current and planned commercial contacts of his employer (having a measurable economic value), which is not justified by the performance of employee obligations, is a deliberate violation of the employee’s basic duty to care for the good of the workplace and protection of his property (article 100 § 2 point 4 of the Labor Code) and the use of someone else’s information constituting a trade secret (article 11 (1) of the Act on combating unfair competition).
Such disloyal behavior may justify termination of the contract without notice. When analyzing employee behavior, emphasis should be placed not so much on the culpable (non-guilty) or legal (unlawful) nature of his behavior, but rather on his loyalty to the employer.
Therefore, even if a non-disclosure agreement or non-competition agreement has not been concluded with the employee, certain employee activities for the benefit of competitors or undertaking their own activities competing with the activities carried out by the employer may be assessed as a breach of the duty to care for the good of the workplace.
It is worth remembering that every employee infringement must be proved, because the Labor Court decides only on the basis of evidence submitted by the parties during the trial. Moreover, even dismissal of an employee does not justify the reduction of remuneration, in particular for overtime or night hours.
KSJ Legal Law Firm successfully conducts labor law cases, including those regarding unjustified or fictitious termination of the employment contract. We advise at every stage of the proceedings, from the preparation of a legal opinion to obtaining a final decision before the court of second instance.
Attorney-at-law Joanna Susło
KJS Legal Kancelaria Adwokacka – Law firm in Wrocław
Tel. 668-841-990
Advocate – Wrocław – Labour law
Illness and dismissal of an employee
In accordance with art. 53 of the Polish Labor Code, the employer may terminate the employment contract without notice if the employee’s inability to work due to illness continues: longer than 3 months
– if the employee has been employed for a given employer for less than 6 months, longer than the total period of receiving remuneration and benefits in this respect and receiving a rehabilitation benefit for the first 3 months
– if the employee has been employed by the employer for at least 6 months or if the incapacity for work was caused by an accident at work or an occupational disease;
The aforementioned provision regulates the admissibility of terminating an employment contract without notice because of the employee’s long-term excused absence. This is due to the logical assumption that the employer employs employees in order to benefit from their work, and the employee’s long absence from work destroys this goal.
It is worth remembering that only after the end of the “protection period” the employer may terminate the employment contract, however, provided that the employee did not show up at work when the reason for absence ceased to exist. Termination of the employment contract without notice may not occur after the employee has appeared for work in connection with the cessation of the reason for absence.
By ‘appearing’ is meant the arrival at the place of work in readiness and objective capacity to perform it. Importantly, as an employee arriving to work, the employee may legally exercise the statutory entitlement to not work (e.g. holiday).
In turn, the failure of the employee reporting his return to work to undergo the medical examination, to which he was directed by the employer, justifies the termination of employment pursuant to art. 53 § 1 point 1 lit. b of the Labor Code (see judgment of the Supreme Court of June 21, 2005, reference number II PK 319/04).
It is also worth knowing that an employee cannot receive a statement about the termination of the contract during the “protection period”, ie when he or she receives, for example, a rehabilitation benefit. The employer may provide the employee with such a statement only from day 91, not earlier. Although it would seem that this is only a technical issue, the Labor Courts take it very seriously and often only for this reason they consider the employer’s statements on termination of the employment contract invalid.
KSJ Legal Law Firm successfully conducts labor law cases, including those regarding unjustified or fictitious termination of the employment contract. We advise at every stage of the proceedings, from the preparation of a legal opinion to obtaining a final decision before the court of second instance.
Attorney-at-law Joanna Susło
KJS Legal Kancelaria Adwokacka – Law firm in Wrocław
Tel. 668-841-990
Advocate – Wrocław – Labour law