Sources of regulation
The Labour Code (LC) of 26 June
1974,[1] as amended on 17 December 2004
(legal standing as of 1 February 2005), is the main source of law which
regulates the termination of employment relationship in Poland. Supplementary
legal provisions are found in the Act of 13 March 2003 on “Special
Principles of Terminating Employment with Employees Due to Reasons not
Attributable to Employees” (hereinafter referred to as the 2003 Act).
In addition, the Constitution
of 2 April 1997[2] is
an important source of law since some of the fundamental precepts of labour
protection are therein enshrined. The Constitution is therefore the underlying
force and legislative basis of Polish labour law.[3]
The Constitution
prohibits discrimination on the grounds of race, creed, religion or gender.
This non-discrimination principle, which also applies to termination of
employment, is reflected in the Labour Code (Article 11³ LC), which prohibits
discrimination on the grounds of age, disability, nationality, political
views and trade union membership, as well as provides for equality in employment
for both men and women (Article 11² LC).
Scope of legislation
The Labour
Code (LC) regulates the rights and duties of employees and employers, as
well as conditions of employment of workers in both the public and the
private sector. It covers all persons employed on the basis of “a contract
of employment, appointment, nomination, election or a cooperative contract
of employment”.[4] These
different forms of employment are all defined in the Code, together with
the definitions of employer and employee.
The Act of
13 March 2003 applies in the event of termination of an employment relationship
due to reasons not attributable to employees, provided that the employer
employs at least 20 employees. The enactment of the Act, which replaced
previous Act on Termination of Contracts of 28 December 1989, together
with recent numerous amendments to the Labour Code, are designed to address
the very difficult current situation in the labour market in Poland, most
specifically the very high unemployment rate.
Contracts of employment
Contracts of
employment may be concluded for an indefinite period, for a fixed period
or for the time to complete a specific task (Article 25§1 LC). Article
25§2 LC provides for the possibility to introduce trial periods not exceeding
three months. Entering into a subsequent employment contract for a fixed
period has a legal effect identical to entering into an employment contract
for an indefinite period, provided that the parties have previously entered
into an employment contract for a fixed period twice (for periods following
each other), and the interval between the termination of one employment
contract and entering into the subsequent one was not longer than one month
(Article 25¹§1 LC).
Termination of employment
Under Article 30§1 LC the contract
of employment can be terminated in several ways:
- by mutual agreement of the
parties;
- by statement of will to terminate
the contract made in writing by one of the parties within the prescribed
time period (with notice);
- by statement of will to terminate
the contract made in writing by one of the parties without following the
prescribed time period for
termination of the contract (without notice);
- by the expiry of the fixed-time
for which the contract was concluded; and
- on the day of completion
of the task for which the contract was concluded.
Paragraph 2
of the above Article specifies the terms of termination of the contract
concluded for the trial period. Such a contract terminates with the expiry
of its fixed-time or by a statement of will made by one of the parties
within the prescribed time period (with notice).
Dismissal
Polish Labour
Code provides for broad protection against unjustified termination of employment
by the employer. This protection includes an absolute prohibition against
the dismissal of certain groups of workers. In addition, the Labor Code
requires all dismissals to be in writing and for a valid reason, and the
Code itself enumerates several grounds of lawful and unlawful dismissal.
In the case
of alleged unlawfulness of the termination of an employment contract, the
employee has the right to appeal to the competent labour court.[5]
Reasons considered
to be valid will generally fall within the categories of serious or repeated
misconduct, incapacity of the employee (Articles 52, 53 and 55 LC), or
operational requirements of the enterprise. Instances of serious or repeated
misconduct entitle the employer to dismiss summarily, without notice, and
include cases where the worker commits a serious violation of his or her
basic duties as a worker, for example where he or she disturbs the order
and peace of the workplace, is absent without justification, is drunk at
the workplace or commits other abuses. The worker may also be summarily
dismissed if he or she is convicted of a criminal or civil offence which
makes further employment impossible, or where they cease, through their
own fault, to have the necessary qualifications for the job. “Serious violation
of basic duties” has been judicially defined as an instance of blatant
carelessness and not instances of lesser fault, while the term “basic duties”
refers to those obligations outlined under Article 100§2 of the Labour
Code.[6]
An employer may also terminate
the employment relationship when the worker is incapacitated by disease
and such incapacity lasts for longer than the prescribed time limits enumerated
in Article 53§1(1) LC. A worker who has been absent from work for a reason
other than for illness, although the absence was justified, for more than
one month, may also be lawfully dismissed.
An employee may also be lawfully
dismissed for refusing to accept a proposed change in conditions of employment
or remuneration (Article 42§3 LC). However, such a proposed change may
not be arbitrary and must be justified by an adequate reason, or by the
introduction of a new remuneration policy or working conditions applicable
to all (or a certain group of) employees within a given enterprise, or
a change in the type of duties.
Certain categories
of workers are deemed to have special protection from dismissal and such
workers may only be dismissed for reasons of serious misconduct, or in
some instances, when the employer declares bankruptcy or is placed in liquidation.
Workers may
not be dismissed for reasons of trade union membership or participation,
or for undergoing obligatory military service. Wives of soldiers in military
service are similarly protected, as are women who are on pregnancy or maternity
leave, or those on three-year child care leave.[7] Also, a worker may not be dismissed
without notice if he or she has been absent to care for a child or has
been placed in isolation because of a contagious disease.[8]
Furthermore, employees who are
less than four years away from pensionable age also enjoy special protection
from dismissal.[9]
Specific rules
relating to dismissals for economic reasons, operational requirements of
the enterprise or due to structural, technological or production changes
are enshrined in the Act of 13 March 2003 on Special Principles of Terminating
Employment with Employees Due to Reasons Not Attributable to Employees.
The Statute
applies to enterprises of at least 20 employees which contemplate terminating
employment relationship (within the period of up to 30 days) with:
- 10 employees, provided that
the employer employs fewer than 100 employees;
- 10 per cent of employees
if the employer employs at least 100 but no more than 300 employees; and
- 30 employees if the employer
employs at least 300 employees.
Such collective
redundancies are referred under the Act as the ‘group lay-off’.
Notice and prior procedural safeguards
Notice is required with regard
to termination of an indefinite period contract or a trial period contract,
except for well-defined situations of serious misconduct of an employee
which entitle the employer to terminate the contract without notice, that
is summary dismissal.
The length of notice for a contract
of employment concluded for an indefinite period depends on the length
of the period of employment, as follows (Article 36§1 LC):
- for periods of employment
of less than six months, the length of notice is two weeks;
- for periods of employment
for at least six months, one month; and
- for periods of employment
of at least three years, three months.
Under Article
36¹§1 the notice period of three months may be reduced to a maximum
period of one month in cases of employer’s bankruptcy or liquidation, or
other reasons not attributable to employees. However, for the remaining
period of notice, an indemnity
shall be awarded in lieu of notice.
The length
of notice for a contract of employment concluded for a trial period also
depends on the length of the trial period, and is as follows (Article 34
LC):
- three working days, if the
trial period does not exceed two weeks;
- one week, if the trial period
is longer than two weeks; and
- two weeks, if the trial period
is three months.
Where a contract
of employment was concluded for a fixed term longer than six months, the
parties to the contract may provide for an “early termination” notice period
of two weeks (Article 33 LC).
The employer
is required to give his or her reasons in writing for any proposed termination
of employment to the employee.
Termination
with notice of an indefinite period contract is subject to trade union
control. The employer must give notice in writing to the relevant union
concerning the proposed dismissal. The union is given the opportunity to
issue an objection to the proposed dismissal within five days (Article
38§2 LC). Although the opinion expressed by the trade union is non-binding,
it is of great influence in the final decision on dismissal made by the
director of the enterprise. It is also an important factor in any dispute
about the “justifiability” of the dismissal. Failure to inform the union
about a proposed dismissal is sufficient ground for an employee to claim
that his or her dismissal was unlawful.
Under the 2003
Act, strict procedural guidelines are laid down for collective redundancies.
First, management must give notice to trade unions about the proposed termination
and inform them of the number of employees concerned and the reasons for
the terminations. The same information shall be also forwarded to the competent
poviat labour office. Such notice must be given within a reasonable period
preceding the proposed redundancies, providing trade unions with an opportunity
to contest the redundancies and to submit counter-proposals. They are expected
to reach an agreement with management about the procedure for redundancies
and termination of employment and pay conditions. In the event of failure
to conclude the agreement, relevant provisions of the Labour Code shall
apply to giving notice and termination of contracts.
Severance pay
In case of
collective redundancies due to the termination of employment under the
‘group lay-off’ programme, special provisions are made for severance payments
or compensatory allowances under the 2003 Act.
Article 8 of
the Act provides that severance payments equate to one, two or three months’
remuneration for workers who have been employed with a given employer for
a total period of less than two years, for 2-8 years, or more than eight
years, respectively. Severance pay shall be determined based on the rules
governing the calculation of unused holiday pay. Moreover, the amount of
the severance pay must not exceed the amount of 15 times the minimum wage,
determined under relevant legislation.
Compensatory
allowances shall be paid for a period of up to six months when the dismissed
worker has been moved to a job with
a lower wage (Article 10(4) of the Act).
For dismissals
other than collective redundancies, Poland has an extensive unemployment
benefits scheme regulated under the Employment and Counteraction Against
Unemployment Act of 14 December 1994 (as amended on 20 December 2002).
A worker who is dismissed for serious misconduct or who resigns is not
entitled to unemployment benefits.
Avenues for redress
Unjustified
termination of employment, with or without notice, or violation of any
of the procedural rules governing termination with notice, and dismissal
of a worker covered by special protection, give the employee the right
to institute legal proceedings in a competent labour court (Article 44
and 242§1 LC). This includes employees who have been dismissed for reasons
of employer’s bankruptcy or liquidation or other economic reasons, and
those dismissed under the collective dismissal programme. In addition,
an employee can apply to the Commission for Arbitration before taking recourse
to legal proceedings before the labour courts (Article 242§2 LC).
When dismissal
is effected before the expiry of the period of notice or without notice,
the dismissal is declared null and void: the employment relationship continues
without interruption and the worker suffers no loss in remuneration.
If the employment
relationship was already terminated, the labour court may rule on the employee’s
reinstatement or award damages (equivalent to two weeks’ to three months’
remuneration, but not less than the remuneration for the prescribed period
of notice), in accordance with the employee’s request.
If, in the
court’s opinion, the reinstatement is regarded as impossible or purposeless,
the court solely awards the employee with damages (Article 45 and 47¹ LC).
In the case
of reinstatement after the effective termination of employment relationship,
the employee is entitled to compensation (equivalent to payment of wages)
for the time of being unemployed but for no more than two months, or for
one month when the period of notice was three months (Article 47 LC).
Under Article
50 LC, in case of violations of rules governing the termination of an employment
contract concluded for a trial period, the employee is entitled solely
to damages and cannot be reinstated.
Further information
[1] Labour Code: www.polishlaw.com.pl or http://www.pip.gov.pl/html/pl/html/k0000000.htm (text
in Polish).
http://paiz.gov.pl/files/?id_plik=7317 (partial text in English).
[2] Constitution: http://www.sejm.gov.pl/prawo/konst/angielski/kon1.htm
[3] For instance,
the right to freely choose and pursue one’s occupation, as well as guarantees
for safe and hygienic working conditions and entitlement to social security
benefits are specifically mentioned. Furthermore, the Constitution ensures
the freedom of association in trade unions, the right to bargain, particularly
for the purpose of resolving collective disputes, and to conclude collective
labour agreements.
[4] Article 2 LC.
[5] Article 44 LC.
[6] These include: (1) observing the appropriate
working hours; (2) endeavoring to achieve the best possible work results,
including the display of appropriate initiative; (3) respecting internal
employment rules and orders; (4) complying with the rules on occupational
safety and health; (5) having regard for the welfare of the establishment,
taking good care of its property and using it in accordance with the purposes
for which it is intended; (6) keeping state and business secrets; and (7)
observing the rules governing life in the community.
[7] With regard to workers on child-care leave, the
recent ruling of the Supreme Court of 15 February 2006, sygn. II PZP 13/05,
introduces less restrictive interpretation of the absolute prohibition
on dismissal – the employment contract may be terminated, provided that
the legal prerequisites of Article 10(1) and 10(2) of the 2003 Act are
satisfied: http://www.sn.pl/orzecznictwo/2_3.html (text
in Polish).
[8] Article 53§2 LC.
[9] Article 39 LC.
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