Author: kjslegal

Divorce and separation in Poland

According to the Polish Family and Guardianship Code, if one of the spouses demands a separation decision and the other divorce decree and the request is justified, the court decides to divorce. However, if the divorce decree is not admissible and the claim for separation is justified, the court decides to separate.

According to current case law, it is not permissible to change an action at the request of a divorce order in a separation case. An advocate from KJS Legal can advise on the selection of a claim (divorce or legal separation), as well as construct a lawsuit and represent during legal proceedings, including appeals.

In the justification of the judgment of 9 September 2009 (file reference number I ACa 565/09), the Poznań Court of Appeal stressed that if, after a separation decision, one of the spouses filed for divorce, the court is bound by the court’s findings in the case of guilty for breaking down the relationship.

In the case of separation, the competent court is the regional court in whose district the spouses had their last place of residence, if at least one of them in the district still has their place of residence or habitual residence. 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.

A flat fee of PLN 600 is charged on a lawsuit in a separation case.

KSJ Legal Law Firm successfully conducts family law cases, including divorce and legal separation, also in cases where 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.

We encourage you to reach directly our lawyers specialized in Divorce Law:

Divorce Lawyer in Poland Joanna Susło

SOS Legal Law Firm in Wrocław

https://divorce-online-poland.eu

Tel. 668-841-990

[email protected]

Advocate – Wrocław – SOS Legal – Lawyer

Competitive activity against the employer

There is no definition of legal “competitive activity” in the Polish Labor Code, which is why the meaning of this concept is best sought in practice – ie court rulings. According to the judgment of the Supreme Court of September 12, 2008. (file reference number I PK 27/08), only the employee’s activity, which is actually carried out by him, is addressed to the same group of recipients, even if it partly overlaps with the employer’s activity and actually threatens his interests. Therefore, only activities that violate or threaten the interests of the employer are prohibited.

Dealing with competing interests is therefore synonymous with activities undertaken for profit or participation in projects or commercial transactions whose effects relate (or potentially may apply), even partially, to the same group of recipients. Undoubtedly, the scope of prohibited competitive activities should be specified in the employment contract or in the additional contract, the so-called non-competition agreement / agreement.

It is assumed that under the “freedom of contract”, the parties should, in the context of the non-competition clause, specify in writing the scope

– subject (what is prohibited?)

– subjective (who cannot be sent to a competitive offer?)

– temporary (when you cannot compete? Is the non-competition obligation only during working hours or outside of it?) and

– territorial (where cannot I compete? Does the non-competition clause only apply to the place where the employer’s registered office is located or to a wider area?).

KSJ Legal Law Firm successfully conducts many matters in the field of labor law, including those related to competitive activity and the so-called employee loyalties. We advise at every stage of the proceeding, starting from an attempt to resolve the case amicably to obtaining a final decision and execution before law enforcement authorities.

Attorney-at-law Joanna Susło

KJS Legal Kancelaria Adwokacka – Law firm in Wrocław

Tel. 668-841-990

[email protected]

Advocate – Wrocław – Labour Law in Poland

How to count the notice period?

An employment contract in Poland can be terminated:

1) by agreement of the parties

2) by declaration of one of the parties with a notice period (so-called termination of the employment contract with notice)

3) by declaration of one of the parties without notice (termination of the employment contract without notice)

4) with the passage of time for which it was concluded.

It is worth specifying that the notice period begins to run from the moment the employee or employer makes a declaration of intent. Declaration of each party on the termination or termination of the employment contract without notice should be made in writing. Importantly, the employee has no right to refuse to accept the employer’s statement of termination of the employment contract.

The employee’s possible claims in the event of dismissal are another matter. Pursuant to the Labor Code, the notice period for an employment contract comprising a week or month or a multiple thereof ends on Saturday or the last day of the month, respectively. This means that the notice period in weeks will always end on Saturday.

However, if the employee terminates the employment contract with a weekly period other than Saturday, the employment relationship will end after a longer period, because at least one full week must end from Saturday to Saturday.

On the other hand, if the employment contract is terminated for a month, the contract will end on the last day of the month. However, the month in which the statement was made does not count. By way of example, if the notice period is 1 month, by making a statement on August 1, the contract will terminate on September 30.

KSJ Legal law firm successfully conducts many labor law cases. We advise at every stage of the proceeding, starting from an attempt to resolve the case amicably to obtaining a final decision and execution before law enforcement authorities.

Attorney-at-law Joanna Susło

KJS Legal Kancelaria Adwokacka – Law firm in Wrocław

Tel. 668-841-990

[email protected]

Advocate – Wrocław – Labour Law in Poland

Parents’ disagreement over the child’s holiday and permission for the passport

In practice, there are many cases where, in the course of the ongoing divorce proceedings, one parent would like to take the child on vacation, but the other does not agree. What can you do in this situation?

A parent who travels with the child alone should have with him / her permission for such travel expressed by the other parent (safest in the form of a notarial deed). This is important because in the event of a conflict between parents or a child not agreeing to leave, the other parent may submit a notice to the Police about the offense of abducting a child abroad. If one of the parents does not agree to the departure of the minor, the other one may personally or through a representative – an advocate submit a request to the Court for a decision on this matter – this is called settling in important matters of the child.

This application is subject to a fee of PLN 100 and should be submitted to the District Court competent for the child’s current place of residence or stay. The application should be accompanied by a shortened copy of the child’s birth certificate and a shortened marriage certificate or a copy of the court decision regulating the exercise of parental authority.

In this way, the consent of a non-agreeing parent will be replaced by a judgment of the Family Court. On the basis of such a judgment, a passport for a child can be issued. It does not matter that the parents are in the process of divorce.

It is only important whether both parents have parental responsibility. Crossing the Polish border is possible on the basis of a child’s individual passport, one parent’s entry in the passport or a temporary identity card (if the journey takes place in one of the EU countries).

KSJ Legal Law Firm handles many matters in the field of family guardianship law, including those related to parental authority, contacts, educational agreement and child support. We advise at every stage of the proceeding, starting from an attempt to resolve the case amicably to obtaining a final decision and execution before law enforcement authorities.

Attorney-at-law Joanna Susło

KJS Legal Kancelaria Adwokacka – Law firm in Wrocław

Tel. 668-841-990

[email protected]

Advocate – Wrocław – Divorce in Poland – Family Law in Poland

Establishment of property separation with retrospective date

For important reasons, each of the spouses in Poland may request the court to establish property separation. Establishment by the Court of property separation may also be demanded by the creditor of one of the spouses, if it is probable that satisfaction of the claim established by an enforceable title requires the division of the joint property of the spouses.

When is the property separation created?

Property separation arises on the day indicated in the judgment that establishes it. Maybe there is also establishing property separation as part of the so-called “nuptial”. It is worth remembering, however, that as part of the intercity, the parties cannot establish separation with retrospective date. This solution is only possible before the General Court.

Pursuant to the provisions of the Family and Guardianship Code, in exceptional cases the Court may establish property separation on the day earlier than the day the court is seized, in particular if the spouses separated. Our lawyers’ experience shows that circumstances such as – separation of spouses, lack of cooperation and consent in conducting business activity, conflicts of interest, justify the adoption of a retrospective date, establishing separation.

Cases for separation by the Court in Poland are heard in the trial. The competent court will always be the District Court, family department.

Importantly, it is unacceptable to seek divorce and to settle property separation with a single application with a retrospective date. In these cases, our lawyers advise on the fragmentation of cases – filing a divorce petition and, at the same time, an application for separation with retrospective date.

KSJ Legal Law Firm handles many family law cases, including those related to the division of property, divorce and establishment of property separation. We advise at every stage of the proceeding, starting from an attempt to resolve the case amicably to obtaining a final decision and execution before law enforcement authorities.

Attorney-at-law Joanna Susło

KJS Legal Kancelaria Adwokacka – Law firm in Wrocław

Tel. 668-841-990

[email protected]

Advocate – Wrocław – Divorce in Poland – Family Law in Poland

Acquisition of inheritance – can it be changed?

In practice, there are many cases where, several years after the death of the testator, his will was found – not disclosed in the course of the proceedings for confirmation of the acquisition of an inheritance. In such situations, the question arises: can the decision on the inheritance purchase be changed? Can a will finder who inherits on the basis of a will do something despite not having participated in the previous proceedings?

The provisions of the Code of Civil Procedure in Poland provide the opportunity in such a situation to submit an application for amendment or revocation of the order for confirmation of the acquisition of an inheritance. Such an application may be submitted by anyone who has the right to request the ascertainment of the purchase of an inheritance pursuant to art. 669 of the Code of Civil Procedure in Poland. The application does not have to contain a request as to the inheritance or the size of the shares of individual heirs. It should, however, include an indication of the circumstances justifying the existence of grounds for amending or repealing the existing order on the finding of inheritance.

Importantly, if the heir did not take part in the first proceedings for confirmation of the acquisition of an inheritance, his application to amend this provision is not limited by any time limit.

KSJ Legal Law Firm handles many matters of inheritance law, including those related to wills. We advise at every stage of the proceeding, starting from an attempt to resolve the matter amicably (when there is a conflict between family members regarding assets, inheritance and inheritance) as to obtaining a final settlement and enforcement before law enforcement authorities.

We encourage you to contact directly our laywers specialized in inheritance cases:

Inheritance Lawyer Joanna Susło

KJS Legal Law Firm in Wrocław

https://inheritanceinpoland.com

Tel. 668-841-990

[email protected]

Advocate – Wrocław – KJS Legal – Lawyer

Inheritance Rights Acquisition Rules in Poland – Inheritance in Poland – legal services

How to Interpret a Testator’s Will from Poland? – Inheritance in Poland – legal services

Sick leave on notice

It happens that an employee who has received from the employer a declaration of termination of an employment contract would like to go on sick leave during the notice period. The question is, is such an employee “on sick leave” entitled to sick leave? Is going to L4 legal? Will it extend the notice period?

First of all, it is worth knowing that an employee has the right to go on sick leave during dismissal. Being also on L4, he can make an employer’s declaration of termination of the employment contract. Secondly, being on sick leave does not affect the notice period.

This means that if you go on sick leave, you will not extend the notice period. However, if the employee went on sick leave before the employer receives a notice of termination of the employment contract, the employer must wait with the dismissal until the employee returns to work.

You cannot fire an employee who is absent from work. The employee is entitled to sick pay for “sick” time, ie up to 33 days of illness, and then sickness benefit. If L4 is longer than the notice period, the employer after the end of this period will forward the employee’s documents related to sick leave to ZUS.

However, the employer cannot extend the notice until the end of sick leave. The course of the notice period is also not affected by an employee filing an appeal against dismissal with the Labor Court. However, the employer has the right to release the employee from the obligation to perform work during the period of notice, without stating the reason for his decision, which may indicate the employer’s fear of the employee’s competitive activity.

KSJ Legal Law Firm successfully represents employees before labor courts. We advise at every stage of the proceeding, starting from an attempt to resolve the case amicably to obtaining a final decision and execution before law enforcement authorities.

Attorney-at-law Joanna Susło

KJS Legal Kancelaria Adwokacka – Law firm in Wrocław

Tel. 668-841-990

[email protected]

Advocate – Wrocław – Labour Law in Poland

Net or gross remuneration?

One of the most important elements of any employment contract is the correct determination of remuneration and its components. The Labor Code does not use the terms gross / net remuneration. These concepts have evolved into practice, while in a possible dispute between an employer and employee they should be considered “colloquial”.

Our clients often ask lawyers how the remuneration should be specified in the employment contract. Should they be marked as gross remuneration (so-called pre-deduction) or net (so-called remuneration on hand)?

The correct answer to this question is gross remuneration, because it is the amount of remuneration from which the employer will deduct the public benefits due (social security and health insurance contributions as well as an advance on personal income tax). The gross amount should also be indicated in a court dispute against the employer for payment, e.g. remuneration for overtime or night hours, as well as in a case regarding the establishment of an employment relationship.

Such a position was approved by the Supreme Court, which in one of its judgments indicated that remuneration for work, as an indispensable element of the employment relationship (Article 22 § 1 of the Labor Code), is a concept defined by labor law. It clearly follows from these provisions that remuneration for work is due to the employee, constituting the whole also including the part which the employer may (is obliged to) deduct (deduct) from. Therefore, it is not possible to construct a definition of remuneration for work in which the part of remuneration due to the employee due (net remuneration) and the part which the employee is not entitled to stand out. The remuneration for work is due to the employee in full and such remuneration is determined by the content of the employment relationship, so in such amount it should be awarded in a court dispute between the parties to the employment relationship. The concept of “gross” remuneration does not appear in the labor law at all and is rather colloquial. Labor law uses only the concept of remuneration for work as such. The notion of “net” remuneration, which should be understood as part of the remuneration for work paid to the employee, is only colloquial, but only if the employer makes appropriate deductions under other legal provisions. (see resolution of the Supreme Court of August 7, 2001, reference number III ZP 13/01).

The position presented above has very important consequences for the employee – if the parties indicated a certain amount of remuneration in the employment contract without specifying whether it is gross or net remuneration (or the contract was concluded orally), it is always assumed that it is remuneration gross.

KSJ Legal Law Firm successfully represents employees before labor courts. We advise at every stage of the proceeding, starting from an attempt to resolve the case amicably to obtaining a final decision and execution before law enforcement authorities.

Attorney-at-law Joanna Susło

KJS Legal Kancelaria Adwokacka – Law firm in Wrocław

Tel. 668-841-990

[email protected]

Advocate – Wrocław – Labour Law in Poland

Cumulative judgement and overall (total) sentence

A cumulative judgment in Poland is issued by the court ex officio or at the request of the convict or prosecutor. An application for a cumulative judgment is not subject to a court fee. The court competent to issue a cumulative judgment is the court that issued the last conviction or cumulative judgment at first instance, adjudicating penalties subject to merger.

If in different instances there were courts of different orders, the joint judgment is issued by a higher court. If necessary, the court asks the penitentiary institutions in which the convict was staying, to send an opinion on the behavior of the convict during the sentence, as well as information on family and property conditions as well as on the state of health of the convicted person and data on the execution of sentences imposed in individual judgments .

The cumulative judgment is issued after the trial. The personal appearance of the convict is not mandatory, unless the court decides otherwise.

Various rules may apply when imposing a total penalty:

– cumulation, which consists in summarizing (accumulating) penalties imposed for converging crimes,

– the principle of absorption (absorption), according to which the most severe of the imposed penalties becomes a total penalty,

– the principle of reduction, according to which the penalty resulting from the sum of unit penalties is reduced according to the adopted criterion (e.g. the upper limit of a given type of penalty, the adopted principle of extraordinary tightening),

– the principle of perception (increase), on the basis of which the highest unit penalty is subject to stricter,

– a mixed (called modified) system principle that combines several of the above principles at once.

Once the cumulative judgment has become final, the merged judgments shall not be enforced within the scope of the cumulative judgment. In the event of imposing in the total sentence a penalty lower than the period of imprisonment or combined imprisonment or equal to this period, the chairman shall immediately order the release of the convicted person, if he is not deprived of liberty in another case.

When submitting the order for enforcement, a joint judgment issued shall be attached. When imposing total penalties, the court is obliged to take into account the degree of relationship between individual offenses, their subjective and objective communication.

According to current case-law, the closer this relationship is, the more prevailing the principle of absorbing individual penalties, and the looser the principle of cumulative or summing prevails. If there are no conditions to issue an aggregate judgment, the court shall issue a decision to discontinue the proceedings.

The KJS Legal law firm represents clients in cases of joint judgment. We select legal argumentation for each case individually to obtain the most favorable solution based on the principle of full absorption.

Attorney-at-law Joanna Susło

KJS Legal Kancelaria Adwokacka – Law firm in Wrocław

Tel. 668-841-990

[email protected]

Advocate – Wrocław – Criminal Law in Poland

Employee claims in the event of termination of the employment contract

In practice, there is no shortage of cases where the termination of employment contract received by the employee is unjustified or violates the provisions of labor law. In such situations, our lawyers draw up an appeal against such termination of the employment contract and represent employees in the labor court.

In such a case, the employee may request that the termination be terminated – so-called declare it to be unauthorized and ineffective. Such a request will be accepted by the labor court, but only until the terminated contract is still in progress, i.e. until the end of the notice period. In practice, this rarely happens.

If the notice period has expired and the request to determine the ineffectiveness of the termination cannot be accepted by the labor court, the employee may request:

– reinstatement to work on previous conditions (so-called restitution claim) or

– compensation (in the amount of remuneration for the period from 2 weeks to 3 months, but not lower than the remuneration for the notice period).

It is up to the employee to choose one of the claims listed above that he or she will want to assert before the labor court. There is an exception to this rule. If the employee requests reinstatement and the labor court, based on the evidence gathered in the case, considers that such reinstatement is impossible (e.g. the job has been liquidated) or would be pointless (e.g. due to the dispute between the employee and the employer), then in such a situation can only award the employee compensation.

An employee who started work as a result of reinstatement to work, is entitled to remuneration for remaining unemployed, but not more than for 2 months, and when the notice period is 3 months – not more than 1 month.

The employer may refuse to re-employ an employee if, within 7 days of reinstatement, he has not reported readiness to start work immediately, unless the deadline is exceeded for reasons beyond the employee’s control.

An appeal against the termination of an employment contract shall be lodged with the labor court within 21 days of the delivery of the letter terminating the employment contract. The appeal can be combined with a claim for payment of overdue remuneration, e.g. for overtime or night hours, as well as with a case to establish the existence of an employment relationship.

The KJS Legal law firm successfully represents employees before the labor court. Our assistance includes pre-trial, mediation, court and enforcement proceedings. We edit settlements – agreements concluded by the parties (employees and employers) before initiating a case in court and court settlements

Attorney-at-law Joanna Susło

KJS Legal Kancelaria Adwokacka – Law firm in Wrocław

Tel. 668-841-990

[email protected]

Advocate – Wrocław – Labour Law in Poland