Tag: prawo pracy

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

[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

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