Changes in the content of employment relationship after parental leave

The purpose of this study is to present the problem of the return of a worker from parental leave to a job previously occupied and to identify alternative opportunities for the employer in the event that it is impossible to return the worker to his/her current post. The construction of the article is mainly based on the practical experience of authors with the reference to the most current legal trends and comments of commentators.

Introduction

The purpose of parental leave is to create conditions enabling parents or carers to provide personal care for a small child. The right to take this leave is granted only to employees (on equal rights for men and women).

Person employed at least 6 months has the right to parental leave to 36 no longer than the end of the calendar year in which the child completed 6. year of life.

According to Article 1864 Act on 26 June 1974 - Labour Code (hereinafter: k.p.)[1] the employer shall allow the worker, after completion of parental leave, to work in his/her current post and, if this is not possible, in an equivalent post, held before the start of his/her leave or in another post corresponding to his/her professional qualifications, with a salary not less than the remuneration for the work of the employee on the day of taking up his/her post before that leave.

Ensuring an equivalent position

The lack of employment of an employee in the current position may be due to many factors. This is often due to organisational causes, reforming the subject of activity or simply successful implementation of a particular project.

Employers may choose to employ another person in the form of a replacement or to use the services of a temporary worker during the absence of an employee on parental leave.

However, if a worker returns from leave in the absence of an existing place of employment, there is a major problem, as should be understood to be the provision of an equivalent position for an employee.

In the opinion of commentators[2] „an equivalent position’ is one where work of the same kind is carried out, which guarantees remuneration at the current level and provides the existing professional position and opportunities for promotion not less than previously held’.

A very similar argument was presented in the resolution of the Supreme Court of 27 September 1979[3] . In addition, under Article 1864 An alternative ‘other’ position has been concluded, which should be understood to be a position of work of another kind, but corresponding to the education and professional experience of a worker.

If the worker returns from parental leave to a similar post within the meaning of the above-mentioned provision, the employer does not need to use the institution of the amending notice in order to legally “transfer” the worker. It is sufficient to give appropriate instructions to ensure that the obligation to provide an equivalent position is effectively and in a manner desirable by the labour law.

Currently, companies with foreign capital often use the term "business", which should be understood as the equivalent of a project that takes longer time. Sometimes the term is confused with the whole business activity, which is often the effect of translating this word from English into Polish.

When this ‘business’ is carried out, the expected changes in the staff handling services occur. Therefore, the employer decides to transfer a returnee from parental leave to work in the same way as the previous one, but in another ‘business’ and other tools or devices in the technological sector.

Such a transfer of a staff member will not require an amending agreement or an amending notice.

The legal basis for the identified employment objectives will be Article 1864 The reasons for such conduct of the employer are contained in the resolution of the Supreme Court of 30 December 1985[4] , where it is indicated that when an employee can be employed in an equivalent or equivalent position, it is not required to terminate working conditions and pay.

The provision in question includes, within the limits of those provisions, the unilateral right of the employer to change the position taken by the employee before parental leave.

Guarantee of remuneration

In practice, there is a question of the amount of remuneration to be paid to a worker who returns to an equivalent post after parental leave. Well, the basis for the salary of the worker returning to work from parental leave is the salary due on the day he took his job in the position he took before his leave.

The resolution of this issue found its legal position in the Supreme Court judgment of 29 January 2008[5] .

It states that: “The legislator has made a reference to the amount of the salary for the returnee of the parental leave not to the person’s earnings before exercising the right to leave, but to the condition existing at the time of his or her employment, expressed by the amount of the remuneration he or she is entitled to at that date in his or her post before the leave.

If, therefore, wage changes concerning this position have occurred during the exercise of leave by a worker, those changes were relevant for determining the amount of remuneration of that worker upon return from leave.

In other words, no matter what position the employee finally took after returning from his leave, the remuneration he received on him could not be lower than the salary of the employer currently in his position before his leave.’

At this point, it should be pointed out that the guarantee of remuneration after parental leave should not be identified as a guarantee of remuneration after basic and additional maternity leave. Article 1832 k.p.6 . The diversification of these guarantees is due to the duration of these holidays. A higher guarantee of pay for a relatively short maternity leave is due to not so much impact on the efficiency of work in the workplace compared to often longer parental leave.

Legal effects of not taking up an equal position

It is worth considering the consequences of an employee trying to challenge the employer’s decision to redirect him to an equal position in the workplace. The answer to the above-mentioned problem was expressed in the Supreme Court judgment of 27 October 2015[7] .

The decision-making body stated that: ‘the failure of an employee to take an equivalent position or equivalent qualification for a remuneration not lower than that of a post held before leave must be qualified as fulfilling the hypothesis Article 52(1)(1) K.

e., since the employee’s obligation to provide the contract work is essential, which is only due to the fact that the employment relationship is defined under Article 22(1) k. e.

as a mutual obligation, the content of which is the obligation of an employee to perform a certain type of work for and under the direction of the employer, and the obligation of an employer to employ an employee for remuneration.

In the framework of the agreed employment relationship, the employer is therefore obliged to perform it by allowing the employee to provide the contract work and the employee is also obliged to perform the work for remuneration.

Non-employment is a derogation from the rule resulting from Article 22(1) k.p., according to which the employee's obligation is to actually do his job, which means that if the worker refuses to do his job, he is acting against his obligation and in that sense his conduct is unlawful.

There is also no reason to believe that a worker who, after returning from parental leave, does not take up a job, although his employer's position corresponds to the applicable rules, does not act intentionally or even because of gross negligence."

It should also be borne in mind that, upon return from parental leave, it is possible to terminate an employment contract on normal terms. Failure to allow an employee to work after parental leave in a post equivalent to that occupied before or in accordance with his qualifications justifies termination of the contract.

In the Supreme Court ruling of 3 November 1994[8] It was stressed that "if an employee had proved to the court that the employer had a suitable place of employment (an equivalent position or in line with his qualifications), e.g. that he would be recruited in parallel, he could be reinstated".

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2 M. Nałęcz [in:] The Labour Code. Commentary, ed. K. Walczak, C.H, Beck, Warsaw 2018.

3 reference no. I PZP 37/79.

4 reference no. III PZP 50/85.

5 reference no. II PK 143/07.

6 Journal of Laws of 2018, item 917.

7 reference no. III PK 13/15.

8 reference no. I PRN 77/94.