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Below, we present a review of judgements given by the Labour Law and Social Insurance Division of the Supreme Court, as well as the Constitutional Tribunal.
The reviewed judgements concern legal problems that have been appearing more frequently recently, i.e. damages for the unlawful termination of an employment contract, the salary due to an employee who has taken up a job after a childcare leave, the grounds for the termination of employment contracts with pre-retirement age or pregnant employees, as well as a calculation of sickness allowance rules.
Supreme Court judgement, file No II PZP 2/08
The Supreme Court decided that, where there is no trade union organisation at the employee’s workplace, or where a pregnant employee is not protected by a trade union operating in the workplace, it is possible to terminate an employment contract with such an employee without notice.
Supreme Court judgement, file No II PK 143/07
An employee who returns to work after childcare leave should receive a salary of not less than the current salary received by the employee who replaced the employee on leave.
Supreme Court judgement, file No II 16/07
The Supreme Court declared that an employee cannot return to work after an employment-related injury without a valid medical examination. If the employer allows such an employee to return to work without a valid medical examination, then the employer will be liable for any deterioration in the employee’s health condition, even if there is no causality between the return to work and the health deterioration.
Supreme Court judgement, file No II UZP 3/08
Supreme Court judged that it is possible to hold the members of the management board of a limited liability company responsible not only for social insurance premiums that were not paid by the company within the appropriate time limits, but also for the labour fund premium, the employee guaranteed benefits fund premium and the health fund premium that were not paid on time.
Supreme Court judgement, file No II PZP 12/08
The Supreme Court decided that an employee who has been restored to work after his employment contract was unlawfully terminated without notice is owed compensation for the time he remained unemployed, in accordance with Article 57 § 1 of the Labour Code. The compensation does not have to include the months directly following the termination of the employment contract if the employee was receiving sickness benefit, for example.
The Supreme Court found it unlawful, the deduction made by employers of the sickness allowance from the compensation due to the employee, who was restored to work after the unlawful disciplinary dismissal.
Supreme Court judgement, file No I PK 194/07
According to the Supreme Court, any document containing terms for calculating bonuses forms part of the remuneration by-laws. Under Article 772 of the Labour Code, there is nothing to prevent remuneration by-laws being split into several documents.
Supreme Court judgement, file No II PK 102/07
In this case, the Supreme Court confirmed that an employee reaching retirement age is a socially accountable criterion for the selection of employees to be made redundant. Furthermore, the Court declared that it cannot be recognised as a criterion discriminating against a specified group of employees.
Moreover, the Supreme Court found that the reason for the termination of an employment contract is not reaching retirement age, but the fact that, upon reaching this age, the employee acquires the right to a different source of income than from employment.
Constitutional Tribunal judgement, files No SK 16/06
The Constitutional Tribunal questioned the previous interpretation of the Act on pecuniary performance from social insurance due to sickness or maternity leave, of 25 June 1999, which said that the parts of employees salary from which the sickness allowance premium have been collected, shall not be the basis for the sickness allowance assessment.
The Tribunal found that the practice of the employer and the Social Insurance Institution (ZUS) collecting the sickness insurance premium from the bonus due to the employee, and then not including the bonus to the sickness allowance assessment, is contrary to Article 67 paragraph 1 and Article 31 paragraph 3 of the Constitution of the Republic of Poland.
This judgement will allow employees to ask employers and Social Insurance Institution (ZUS) to recalculate payments that are not time-barred.
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THE EMPLOYEE’S CLAIM IN THE CASE OF THE UNLAWFUL TERMINATION OF AN EMPLOYMENT CONTRACT WITHOUT NOTICE BY THE EMPLOYER
General rules
The termination of an employment contract without notice through the employee’s fault is an unusual procedure for terminating an employment relationship.
Accordingly, the procedure must always be justified with extraordinary circumstances, based on the employee’s fault.
The catalogue of reasons justifying the termination of an employment contract without notice, i.e. with an immediate result, can be found in Article 52 of the Labour Code, which includes the following reasons:
a serious violation of the employee’s basic duties
the employee confessing to or being sentenced for a crime, which prevents him from performing his duties under an employment contract.
the deliberate loss of qualities necessary to perform work according to the position that the employee holds.
The termination of the employment contract through the employee’s fault cannot be made more than one month after the employer discovered the grounds for terminating the contract. Additionally, the termination of the contract needs to be consulted with the trade–union organisation representing the employee.
The termination of an employment contract, following the procedure set out in Article 52 of the Labour Code, should be made in accordance with the regulations of the Labour Code. Otherwise the employee whose contract was terminated in violation of the regulations violation may claim reinstatement to his job under previous conditions, or compensation.
The Labour Court decides on the matter of allowing the employee’s demands or dismissing them. If the employee does not claim for reinstatement to his job, or if the Labour Court finds that allowing the claim is impossible, or is not advisable, it will award compensation for dismissal in violation of regulations concerning the termination of employment contracts.
The Employee’s claims
The compensation due to an employee whose employment contract was unlawfully dissolved, as indicated in Article 58 of the Labour Code, is equal to the remuneration due for the employee’s notice period. For the termination of a time-fixed contract, the compensation due to the employee is equal to the remuneration for the outstanding duration of the contract, up to three months.
Until now, the Supreme Court has assumed that the compensation indicated in Article 58 of the Labour Code is legal compensation and is due to an employee regardless of the level of the incurred damage, and that it exhausts all the employee’s claims for the unlawful termination of an employment contract without notice. In accordance with this view, the Labour Courts have assumed that the highest compensation due to the employee should be restricted to the level of three months’ salary.
This position was changed on the strength of a judgement of the Constitutional Tribunal of 27 November 2007 (SK 18/05). In the judgement, the Constitutional Tribunal found that: “as far as Article 58 in relation to Article 300 of the Labour Code excludes the vindication of any other compensation claims relating to the unlawful termination of employment contract without notice, it is unconstitutional.”
In the justification of the judgement, the Constitutional Tribunal emphasised that, as a result of the previous interpretation of Article 58 of the Labour Code, the proprietary rights of an employee who has been unlawfully dismissed from work, guaranteed by Article 64 of the Constitution can be violated in a way that contradicts the rules of social justice. The violation of social justice consists in making it impossible for the employee to receive the full compensation for damage directly in connection with the unlawful termination of an employment relationship without notice.
The Constitutional Tribunal admitted the right for the employee to claim full compensation of the incurred damage. In practice, this means that wrongfully-dismissed employees can demand compensation not only at the level of three months’ salary, according to Article 58 of the Labour Code, but may also – in accordance with civil law regulations – seek damages to a wider extent, for example compensation of damage caused as a result of not meeting the premises conditioning the acquisition of the right for pre-retirement benefit or a jubilee award, the costs of finding another employment, the costs of travel to prospective employers.
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