Does the protection of the sustainability of the employee's employment relationship also work in the case of collective redundancies?

one from commonly adopted standards in the labour law of European countries is to protect the sustainability of the employment relationship of workers exposed for various reasons to the increased risk of termination of employment against their will, for reasons which are, in fact, prohibited by discrimination against those categories of employed persons.

This applies, in particular, to employees who are parents or who have functions related to representing employees' interests before the employer. However, there are situations where the reduction in employment may depend on "being or not" an undertaking with serious financial problems.

Is this also the case where all provisions guaranteeing the sustainability of the employment relationship are applied?

Introduction

Article 5 Act on special rules for the resolution of labour relations with employees for reasons not affecting workers from 13 March 2003 1 (Further: The Act) introduces some restrictions on the possibility of termination of employment relations with certain employees in the framework of the collective redundancies process. In the case of an employer who does not have trade unions, termination of employment relations during leave and due to other justified absence from work is possible during leave at least 3 months, and in other justified absences from work, if the employer is already entitled to terminate the employment contract without notice. It should be pointed out that denunciation of working conditions and pay in these situations is permissible regardless of the duration of the leave or other justified absence of the worker at work. During the period of special protection against termination or termination of employment, the employer may only express the working conditions and wages of the employee in the framework of the collective dismissal procedure:

• 1) who are missing no more than 4 years to reach retirement age, pregnant workers, workers during maternity leave, maternity leave, parental leave and paternity leave;
• 2) being a member of the staff board of a State-owned enterprise;
• 3) a member of the company board of a union organisation;
• 4) who is a member of a trade union organisation, authorised to represent that organisation to the employer or body or person acting as an employer in matters of labour law;
• 5) a member of a special negotiating team or a European Works Council;
• 6) a member of a special negotiating team, representative body or employee representative in a European company;
• 7) being a member of a special negotiating team, representative body or employee representative in a European cooperative;
• 8) being a member of a special negotiating team, representative team or employee representative on the supervisory board of a company formed by a merger of cross-border companies;
• 9) a social labour inspector;
• 10) appointed for active military service, replacement service, essential military service or military training;
• 11) a member of the staff council or as defined in the agreement referred to under Article 24 Act on 7 April 2006 information and consultation of staff 2 , a representative of employees entitled to obtain and consult the employer.

If a notice amending the working conditions or pay above the persons indicated results in a reduction in their remuneration, they shall be entitled, until the end of the period during which they would enjoy special protection from termination or termination of employment, also a compensatory allowance.

Educational leave

Under Article 1868(1)(1) Work Code 3 The legislator indicated that the employer could not terminate or terminate the employment contract during the period from the date on which the worker applied for parental leave until the end of that leave. The termination of the contract by the employer at that time is only allowed if the employer is declared bankrupt or liquidated, and if there are reasons justifying termination of the contract without notice from the employee.

At the same time, the situation of people on parental leave was not directly regulated in the Act.

We can only appeal to her here Article 5(3), according to which termination of the employment contract under the block exemption procedure is permitted during leave of at least 3 months. This provision is a specific provision to the abovementioned general regulation Article 1868(1)(1) C.P.

It follows, therefore, that in the case of group redundancies it is not necessary to liquidate or declare the employer bankrupt in order to terminate the employment contract to a person on parental leave. Similarly, K. Walczak says 4 . This is also the opinion of R. Lisicki and M. Frączek 5 .

It is worth quoting here the Supreme Court's statement from the resolution from 15 February 2006.[6], that the provisions of the Act may form the basis for the termination of employment with an employee during the period of parental leave also in situations where the conditions provided for do not exist under Article 1868(2) k.p., i.e. the liquidation or bankruptcy of the employer.

Similarly, the Supreme Court also referred to those who based Article 1867 K.p., being entitled to parental leave, they apply to the employer to reduce their working time to not less than half the full working time.

According to Article 1868(1)(2) k.p., the employer may not terminate or terminate the employment contract during the period from the date on which the worker entitled to parental leave applies to reduce the working time up to the date of return to the unreserved working time, but no longer than for the total period 12 months.

The termination of the contract by the employer at that time is only allowed if the employer is declared bankrupt or liquidated, and if there are reasons justifying termination of the employment contract without notice from the employee.

The Supreme Court considered that ‘if the employer correctly applied the provisions of the Rules of Procedure for collective redundancies to workers and released them in accordance with the principles of reduction of employment laid down by him, it is not protected from Article 1868 k.p.

because this protection disables Article 5(1) Act on 13 March 2003 specific rules for the resolution of labour relations with employees for reasons not affecting workers. Regulating from Article 1868 k.p.

does not exclude the protection of a worker benefiting from a reduction in working time by special provisions, including the provisions of the Act on 13 March 2003 specific rules for the resolution of employment relations with workers for reasons not affecting workers’ 7 .

It follows from the above that those taking parental leave, as well as those benefiting from reduced working time on the basis of Article 1867 k.p. should be treated in the same way under the block exemption procedure. It should be remembered that this means that, as part of the collective redundancies, the mechanisms for the durability of employment relationship do not apply to a worker on parental leave if it lasts longer than three months. K. Baran is also of this opinion 8 .

As the Supreme Court stated 9 , termination of the employment contract during the period first three months of parental leave, in the case of granting to a worker this leave for a period longer than three months, shall be allowed if dismissal has occurred for reasons relating to the establishment.

When leave is shorter, only a change notice is allowed. Admissibility of notice is the extent of parental leave granted to an employee (at least 3 months), and denunciation is allowed ‘in time’ of this leave.

During the group dismissal procedure, it is possible to terminate the employment contract for persons who have received parental leave for at least 3 months. Denunciation may be given to such an employee even if it has not expired 3 first months of parental leave, but the worker has previously requested at least 3 Months of vacation like this. This also applies to those who have requested on the basis of Article 1867 k. o. to reduce the working time.

Inability to work due to illness

According to Article 5(3) Laws, termination of employment relations to employees during another justified absence of an employee at work (e.g. incapacity to work due to illness), if the period has expired which entitles the employer to terminate the employment contract without notice, are possible under the group dismissal procedure. In order to clarify the concept of ‘the period authorising the employer to terminate the employment contract without notice’, reference should be made to Article 53 k.p.

According to that provision, an employer may terminate an employment contract without notice if the incapacity of the worker to work due to illness is:

1. longer than 3 months – when the worker was employed with the employer less than 6 months,
2. longer than the total period for collecting the remuneration and the allowance (182 days) and the collection of rehabilitation services by first 3 months – when the worker was employed by the employer at least 6 months or if incapacity has been caused by an accident at work or a occupational disease.

Termination of the employment contract without notice on the basis of Article 53 This may not be the case in the absence of an employee at work due to the care of the child, at the time of the receipt of the benefit, or in the event of the worker being separated due to an infectious disease, during the period during which the child is paid and the benefit is paid.

A worker unable to work due to illness may not receive a definitive notice under the block exemption procedure if the protective periods indicated have not yet expired under Article 53 k.p. However, he may be given a notice amending his working conditions or wages.

Pre-retired protection

According to Article 5(5)(1) The Act, the employer may not terminate the employment contract to an employee who is no more than 4 years to reach retirement age. If this condition has been met by the employee, the employer may not terminate the employment contract in a definitive form under the block exemption procedure. It will only be possible to give a worker notice changing his working conditions or pay.

It should also be remembered that Article 39 k.p., which is the original source of pre-retirement protection regulations, later transferred to the Law, introduces only a ban on the termination of employment contracts during a protective period, not a resolution. Therefore, it will not apply to the notice made to the staff member before the beginning of the safeguard period, the closing date of which is already within that period. So says P. Snake[10].

Furthermore, according to the Supreme Court ruling, ‘the protection of the durability of the employment relationship of a pre-retirement worker is to prohibit the employer from giving notice of termination of the contract within a specified period and not to prohibit the effect of termination of the contract (that is, termination of the employment relationship) filed before the beginning of the safeguard period.

In other words, Article 39 n.e. does not prohibit the employer from terminating the employment contract before the start of the safeguard period, even though the solution took place during that period." 11 .

Pregnancy and maternity leave

According to Article 5(5)(1) The Act, during the period of special protection, can only be expressed by the employer in the working conditions and wages of the worker during pregnancy, as well as during maternity leave. The protection of the durability of the employment relationship also covers workers during the period of extra maternity leave, maternity leave, additional maternity leave, parental leave and paternity leave.

The above-mentioned protection shall not apply to workers in a probationary period, not exceeding one months.

At the same time, it should be remembered that a pregnant worker whose employment contract is concluded for a fixed period or for a trial period exceeding one month, would be resolved after third the month of pregnancy is legally extended to the day of delivery.

The associated protection of the durability of the employment relationship is also appropriately extended. This rule shall not apply to workers employed under a fixed-term employment contract concluded to replace the worker during his justified absence from work.

It should be borne in mind that, according to the Supreme Court’s assertion in the judgment of 2 June 1995[12] „resulting from Article 177(1) e.g. the prohibition of termination of a contract of employment with a pregnant worker shall also apply when she becomes pregnant during the period of notice.’ This reasoning would also apply in the event of termination of the contract under collective redundancies.

Staff enjoying the protection provided for under Article 177 k.p. may not receive definitive notice under the block exemption procedure. It will only be possible to give a worker notice changing his working conditions or pay.

Summary

In relation to all the special situations discussed above, the Supreme Court’s claim must be cited from the judgment of 23 June 2010[13], according to which ‘in the event of collective redundancies, the employer may terminate definitively (and not only amending) the contract of employment of a worker subject to special protection under a separate provision (Article 5(1) Act on 13 March 2003 special rules for the resolution of employment relations with employees for reasons not affecting workers), not specified under Article 5(5) of this law, even if the employer is not declared bankrupt or liquidated.’

It would therefore be possible to safeguard the sustainability of the employment relationship with collective redundancies only where clearly indicated under Article 5(5) The bill.

1 Journal of Laws of 2016, item 1474.

2 Journal of Laws of 2006, item 55.

3 Act of 26 June 1974 – The Labour Code, i.e. Journal of Laws of 2018, item 917, Further k.p.

4 K. Walczak [in:] Collective labour law. Commentary, ed. J. Wratny, K. Walczak, Warsaw 2009.

5 R. Lisicki, M. Frączek, Termination of employment relationship – causes not affecting the employee, “Work and Social Security” 2010.11.42.

6 reference no. II PZP 13/05, OSNAPiUS 2006 No 21-22, item 315, p. 889.

7 Judgment of the Supreme Court of 24 October 2012, reference no. I PK 126/12, Legalis.

8 K. W. Baran, Collective Labour Law. Commentary, Warsaw 2010.

9 Judgment of the Supreme Court of 11 December 1996, reference no. I PKN 39/96, OSNAPiUS 1997 No 14, item 252.

10 P. Snake in: The Labour Code. Commentary, ed. K. Walczak, Warsaw 2013.

11 Judgment of the Supreme Court of 6 December 2005, reference no. III PK 94/05, Legalis.

12 reference no. I PRN 23/95, OSNAPiUS 1995 No 22, item 276.

13 reference no. II PK 21/10, MoPr 2010 No 12, p. 618.