Tag: odwołanie do sądu pracy

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

[email protected]

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

[email protected]

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

[email protected]

Advocate – Wrocław – Labour law

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

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

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

Lack of discipline as a reason for termination of the employment contract

The employer must indicate the reason justifying the dismissal in the statement terminating the employment contract with the employee. However, this only applies to contracts concluded for an indefinite period.

Lack of indication of the reason opens the employee’s way to bringing an appeal to the labor court. If the reason was indicated in the statement, sometimes there may be doubts as to its content, e.g. is the reason specific enough? Is the reason for termination fictitious? “Lack of employee discipline”. Is this wording correct?

To answer this question, first look at the personal files of the employee. This is where all information about the current employment history, prizes and penalties as well as other relevant annotations should be placed.

Let’s assume that in the employee’s personal file, there is an annotation of the employer that the employee was late for work twice – 25 minutes and 45 minutes, respectively. In such a situation, was the employer entitled to dismiss the employee, and as the reason write only “lack of work discipline”? In the light of current case-law, this question should be answered in the affirmative, because the reason for the dismissal was also due to other circumstances – i.e. the employee’s personal file.

Due to the fact that the documents supplementing the reason for termination are in the employee’s personal file, the employer is somehow exempted from describing in detail the reasons for terminating the employment contract in the declaration itself. In such a situation, it is assumed that the employee must have been aware of his previous reprehensible behavior, which led to termination of his employment relationship. Of course, it may happen that the employer only after the fact – for the proceedings before the labor court – will complete the personal file, e.g. documents testify that an employee has been warned or reprimanded.

However, such evidence can be challenged. The employer should prove the fact of not only posting but also receiving by the employee each reminder / reprimand.

KJS Legal law firm has extensive experience in conducting employee welding. We assist at every stage of the proceedings. Fighting unjustified termination of employment contracts is one of the most common cases in which we represent employees.

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