Labour law updates and recommendations 2022

Key considerations when terminating employment without notice

Termination of employment without notice due to the fault of the employee (summary dismissal) is regulated in Article 52 of the Labour Code. It is permitted in three specific cases:

  • when an employee commits a serious breach of his/her employee obligations;
  • when an employee commits a crime which makes it impossible for him/her to continue in his/her position (if the crime is obvious or has been confirmed by a final court judgment);
  • when an employee culpably loses the qualifications necessary to perform his/her job.

A serious breach of basic employee obligations is when an employee is culpably at fault or is   guilty of gross negligence. Examples of this include failing to comply with the employer’s instructions, unjustified absence from work, stealing the property of the employer or work colleagues, and disclosing important business information of the employer.

Employers may provide information in their policies and internal by-laws a catalogue about what they consider to be serious breaches of basic employee obligations (taking into account the specifics of the company).

In the case of summary dismissal, the employer must inform the trade union organisation representing the employee about the reason(s) for the dismissal. The trade union then has three days to express its opinion on the matter; however, this opinion is not binding on the employer. The obligation to inform only applies to trade unions and does not apply to works councils or employee representatives.

It is important to note that summary dismissal cannot take place later than one month after the employer becomes aware of the circumstances justifying the dismissal, something which in practice may give rise to some doubts.

According to the Supreme Court (e.g. judgment of 28 April 2010, II PK 316/09), this one-month period begins at the moment when the organ or the persons managing the employing establishment, e.g. employees of the HR department representing the employer in accordance with Article 3 of the Labour Code, become aware of the breach of employee obligations.

In addition, the employer may and sometimes must conduct an internal investigation.

According to the decision of the Supreme Court of 27 April 2021 (III PSK 45/21): The course of the one-month period provided for in Article 52 § 2 of the Labour Code starts only from the moment when the employer obtained sufficiently reliable information justifying its belief that the employee committed an act reprehensible to the extent justifying immediate termination of the employment contract, i.e. from the moment of completion – undertaken immediately and efficiently – of the internal proceedings to check the information obtained by the employer about the employee’s improper conduct. At the same time, a change of the employee’s supervisor or a change in the management of the employer does not affect the beginning or the course of the one-month period under Article 52 § 2 of the Labour Code.

Therefore, the key moment is when the employer (as a rule, a person authorised to act on behalf of the employer) had the opportunity to check and confirm the correctness of the allegations against the employee, and not the moment when he/she received the first, as yet unverified, information about the employee’s reprehensible conduct.

In the case of a breach in the form of conduct of a continuous character, e.g. commencement of activity competitive towards the employer, the one-month period is counted from the last act of the employee.

The one-month period is observed if, at the latest on the last day, the employee received the employer’s statement of intent in such a way that he could learn its contents.

The employer (or a person authorised by the employer) may give the termination letter to the employee personally or send it by post or courier to the last address indicated by the employee. It may also be sent by e-mail, but only if a qualified electronic signature is used (a letter without such a signature does not constitute the required written form).

As for delivery by traditional post, it should be remembered that the COVID-19 regulations have suspended the so-called “fiction of delivery”, which means that the employee’s failure to collect the correspondence after one or two reminders will not be considered as the effective delivery of the letter. A termination letter sent by post which cannot be delivered should be considered defective.

It is worth emphasising that the dismissal of an employee under Article 52 of the Labour Code does not have to be preceded by disciplinary penalties or other reminders. The employer may immediately apply the indicated method of terminating the employment relationship.

In the termination letter, it is crucial for the employer to indicate the reason(s) for termination very precisely and in a way that is clear for the employee. The employee needs to know what specific conduct constitutes grounds for termination (decision of the Supreme Court of 20 April 2021, I PSK 43/21). Such precise and clear wording may prove very important role in the event of a court dispute because when assessing a case, courts only refer to the reasons indicated in the termination letter, even if the employee has committed other breaches that may justify the application of Article 52 of the Labour Code.

If the termination without notice is deemed defective, the court will reinstate the employee and award him/her remuneration for the period of unemployment (between one and three months, provided that the employee resumes work) or compensation equal to the remuneration for the notice period (and in the case of an employee subject to special protection against dismissal, for the entire period of unemployment).

Taking the above into account, any decision by an employer to dismiss an employee under Article 52 of the Labour Code should be thoroughly analysed and supported by evidence. It is also important to remember that the reasons for termination should be precisely and clearly formulated – otherwise there is a high risk of losing a potential court dispute with the dismissed employee.

 

Agnieszka Tarasiuk, Paralegal