The Supreme Court adopted a resolution indicating that the criminal protection of workers' rights is covered by employees under the provisions of the Labour Code. The court shall make its determination in this respect in a criminal trial in accordance with the principle of jurisdictional independence.
On 20 September 2018, on the signature of the act I of the NAP 5/18, SN stated that the protection of workers' rights envisaged under Article 218(1a) The Penal Code (hereinafter: ‘k.k.’) covers persons who are employees under the provisions of ó in the Labour Code (hereinafter: ‘k.p.’), i.e. persons employed under employment conditions, regardless of the name of the parties to the contract.
The problem arose in the following factual state: M.W. made a request to law enforcement authorities for criminal proceedings against his employer due to harassment at work, i.e. Article 218(1a) Penal Code.
The reaction to the filed notification of the possibility of committing a crime was to issue a decision to refuse to initiate an escalating procedure due to the lack of a criminal record which was approved by the prosecutor.
According to the public prosecutor, the fact that the victim was employed under a civil law contract excluded him from the list of persons belonging to the employee within the meaning of the abovementioned provision.
According to the literal wording of the regulation, who, in carrying out activities in matters of labour law and social security, maliciously or persistently infringes the rights of workers resulting from employment or social security, is subject to fines, imprisonment or imprisonment for up to years 2.
The law enforcement decision was challenged by the victim, who said that he was actually employed in the employment relationship and that the contract concluded with the employer was only for the sake of appearance called a work contract.
In the course of the appeal, it was considered that in the present case they had raised a legal issue requiring a fundamental interpretation of the law. In the light of the above, the court hearing the case appealed to the Supreme Court to answer the following legal question: did the provision Article 218(1a) k.k.
under the term ‘employee’, it is necessary to understand only a person employed on the basis of a contract of employment, a selection, a appointment or a cooperative employment contract, or a person who is engaged in employment on the basis of a contract in civil law, such as a contract of contract or contract of work, or a person who, under the appearance of performance of a civil law contract, actually proves employment in the employment relationship?
The Supreme Court stated that: Article 218(1a) k.k. only employees within the meaning of Article 2 k.p. and Article 22(1)(1) 1 k.p., i.e. persons employed under employment conditions, regardless of the name of the parties to the contract. The court shall make its determination in this respect in criminal proceedings, in accordance with the principle of jurisdictional autonomy expressed under Article 8(1) K.p.k.
The Supreme Court, responding to the question asked, pointed out that, according to the beliefs of the doctrine, ‘(...) in the process of decoding the characteristics of crimes, it is not in principle appropriate to modify the established definitions from the scope of other branches of the law (...)’.
The meaning of the term ‘employee’ should therefore be determined by labour law standards. In view of the above considerations, it should be pointed out that according to Article 2 The employee is a person employed on the basis of an employment contract, appointment, election, appointment or cooperative employment contract.
As rightly stated in the explanatory memorandum of the resolution, “This employee status is acquired by the establishment of an employment relationship by which he or she - according to Article 22(1) k.p.
- the employee undertakes to perform a certain type of work for the employer and under his or her direction, and at the place and time prescribed by the employer, and the employer undertakes to employ the employee for remuneration."
In the further part of the statement of reasons for the resolution, it was noted that not all the provisions in Chapter XVIII of the Criminal Code entitled ‘Failure against the rights of persons engaged in gainful employment’, specifying the person whose legal goods are protected by the standards underlying them, use the term ‘employee’.
This state of affairs leads to the conclusion that the legislator, by typifying the offences contained in the said section of the Criminal Code, knowingly used this term to narrow the circle of persons subject to criminal protection under that provision (Article 218(220) k.k.).
In the context of the above remark, one cannot forget that by Article 13 Act dated 10 January 2018 on the restriction of trade on Sunday and on holidays and some other days, a new provision was introduced in the Criminal Code Article 218a, the wording of the term ‘employee’ shows that the legislator gives different meanings to these concepts and cannot be used interchangeably.
Furthermore, the Supreme Court has not failed to note that the extension of the ‘employee’ scope included in the Article 218(1a) k.k. per person performing gainful work on the basis of the provisions of the Civil Code (e.g. under the contract of order), would constitute an interpretation extending the provision to the detriment of the accused, which is directly contrary to the principle in force in the Polish penal system of the nullum crimen sine lege (Lac. there is no crime without the bill).
By issuing a ruling in the present case, the wording of the Article 22(1) 1 P.E., which states that employment under certain conditions Under section 1 This article is employment on the basis of employment relationship, regardless of the name of the parties to the contract.
The court should therefore determine whether the legal relationship between the parties in the case in question is of an employee relationship.
According to the Supreme Court, it is essential for the correctness of the findings made in this respect that ‘(...) it is essential to determine whether the work carried out in the context of the assessed legal relationship actually has the characteristics listed above under Article 22(1) k.p.; to this end, the circumstances and conditions under which a person performs activities for another legal entity shall be examined and it shall only be as a result of that investigation that those activities are carried out under conditions indicating employment relationship.’ The Supreme Court pointed out that “in the literature of the subject, it is pointed out that whether a person remains in employment or in a compulsory relationship with an employer determines the nature of that relationship and the content of the contract, rather than its name.
The characteristics of the employment relationship – directly related to Article 22(1) k.p. – they are paid to provide work to and under the direction of the employer.
The doctrine of labour law adds to this features such as the personal provision of work by the employee, voluntary commitment and burdening the employer with economic, productive and personal risks. Legislative under Article 22(1) 1 k.p.
laid down a specific principle of employment within the framework of employment relationship, meaning that any employment having the characteristics of employment relationship is treated by law as employment within the framework of employment relationship, regardless of the name of the contract concluded by the parties (...)’.
In conclusion, the Supreme Court concluded that: Article 218(1a) k.k. only employees within the meaning of Article 2 k.p. and Article 22(1)(1) 1 k.p., i.e. persons employed under employment conditions, regardless of the name of the parties to the contract. The court shall make its determination in this respect in criminal proceedings, in accordance with the principle of jurisdictional autonomy expressed under Article 8(1) K.p.k.