Tag: sąd pracy

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

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