Tag: niezasadne wypowiedzenie

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

[email protected]

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

[email protected]

Advocate – Wrocław – Labour law