Change of terms of the employment contract

The purpose of this study is to present the rules provided for in the Act of 26 June 1974 - Labour Code[1] , to change the content of the employment contract. The main issue analysed is the institution of the amending notice, which can only be used by the employer. The employer may only propose that more favourable provisions be introduced into his contract. However, there are no legal instruments to give the employer such notice.

Introduction

There are often situations in which, for different reasons, both sides or only the one they are interested in changing the terms of the contract concluded and executed. These changes often concern the amount of remuneration, the type of work provided or the position of the employee.

In order to modify the existing working conditions, an agreement can be used to amend and terminate working and wage conditions. It should be borne in mind that the provisions of the amending agreement do not contain provisions, but only contain amending notices.

Nevertheless, in practice, the choice of the path of the amending agreement is more common.

Amendment Agreement

Article 11 It follows that the establishment of an employment relationship irrespective of the legal basis of that relationship requires a consistent declaration of the will of the employer and the employee.

From the literal wording of that provision, it could be apparent that the need to make consistent declarations of will relating to working conditions and pay is applicable only at the time of conclusion of the employment contract.

However, such a rigorous interpretation of this provision does not preclude the possibility of modifying the contract underlying the existence of an employment relationship by making declarations of will during employment.

This possibility arises from Article 300 k.e., which provides that in cases not governed by the provisions of labour law, the provisions of the Act of 23 April 1964 - Civil Code[2] ((c) if they are not contrary to the principles of labour law.

A key provision to support employment relations is Article 3531 k.c., which establishes the principle of freedom of contract and thus covers the scope of its regulation of the amending agreement.

Article 29(4) k.p. is the obligation to amend the employment contract in writing. It should be borne in mind that this obligation was not imposed by the legislature by a sanction of annulment if the written form had not been observed.

Thus, modification of employment contracts is permitted in oral form or by making so-called implicit (conclusive) activities. This argument was confirmed in the Supreme Court judgment of 20 August 1997[3] .

Failure to conclude a change agreement in writing could often result in disputes concerning the authentic content of the employment relationship.

The legal basis for creating a claim in such a situation will be Article 189 Act on 17 November 1964 - Code of Civil Procedure[4] , on the basis of which a judicial determination may be requested or the absence of a legal relationship (work).

It is interesting to note that in labour law cases of an employee's actions, the provisions which limit the admissibility of evidence from witnesses and hearings of the parties, as is the case in classical civil cases in the event of ad-probation in writing, do not apply.

The Parties, when deciding to conclude an amending agreement, may postpone the commencement of the amending effect. In the absence of a clear indication of the moment of this effect, it should be considered that it will be appropriate to conclude this agreement in a chosen form.

It should not be excluded that the new agreement will be less beneficial for the employee than the current binding employment contract. However, this limit solution will be the minimum standard of protection set by the provisions of the CFR.

There are no obstacles to changes in the so-called special protection of employment relationships, such as pregnant women, union members or pre-retirement workers.

A warning indication may be the admissibility of changing the employment contract to a civil contract by agreement of the parties to the original employment relationship, as confirmed in the judgment of the Supreme Court of 18 July 2012[5] .

Amending notice

The amending notice institution shall entitle the employer, by unilateral legal action, to change the working conditions and pay of the employee. The provisions governing this possibility have been made worthy. 42 section 1-3 k.p.

Thus, it is possible to change all the terms of the employment contract in principle by means of a amending notice. However, it is unacceptable to change the type of employment contract by amending notice.

In the judgment of the General Court of 28 April 1994[6] the possibility of changing the employment contract concluded for an indefinite period to a fixed-term employment contract has been eliminated. However, the admissibility of such a change can be advocated with options using an amending agreement.

Under Article 29 k.p., the so-called essential terms of the employment contract are included, which we can talk about when the employer decides to change them, using the amending notice path.

The catalogue of these conditions includes the type of work, the place of work, the working time or the change of remuneration to the detriment of the worker. The Parties may also introduce other conditions which are recognised by them, subject to qualification as material. A classic example of an additional relevant condition may be e.g.

an extended period of leave or an increased payment of sickness benefit. The demarcation between the terms of the employment contract considered by the legislator to be relevant or irrelevant is not an obvious but sensitive issue.

Interesting considerations on the above-mentioned conceptual delimitation are contained in the judgment of the Supreme Court of 7 September 1999, where the court has indicated that a change in working conditions consisting solely of a change in the name of the position, while maintaining other working conditions and pay, falls within the framework of an employee's subordination and does not require any amending notice.

However, if the parties agree to treat such a change as a substantive element (e.g. if the name implies prestige of the position), it may require the termination of working conditions"[7] .

The employer should propose new conditions to the employee in writing in order to use the amending notice institution. The notice given in writing should contain not only elements of the employment contract subject to change but also new, specific working conditions.

Article 42(3)) k.p. shows that if the employee refuses to accept the proposed working conditions or wages, the employment contract shall be automatically terminated at the end of the period of notice.

If the employee fails to make a statement of refusal to accept the proposed conditions before the end of the period of notice, it shall be deemed to have agreed to the new conditions. The letter of the employer addressed to the employee should contain a instruction on this matter.

However, if this instruction is omitted, this gives the employee the right to make a declaration by the end of the period of notice of refusal to accept the proposed working conditions and wages.

The employer is therefore obliged to instruct the employed person that by the middle of the notice period he is entitled to make a declaration of refusal to accept the new conditions. An employee may choose to make any form of such declaration.

If the employee does not make a statement within the time limit specified in the Act, it shall be deemed to have agreed to changed working conditions, the so-called presumption of consent of the employee.

In the judgment of the General Court of 23 November 2007[8] a statement has been made that the amending notice has an effect on the future, never in relation to the past.

Where the employee has not accepted the notice by making an appropriate declaration, the amending notice shall be converted by law to a so-called definitive notice, which shall ultimately result in the termination of the contract of employment at the end of the period of notice.

The provisions on termination of the employment contract should apply to the amending notice. Consequently, it implies the use of the rules on periods and deadlines of notice, consultation of the trade union organisation, the advice of employees and other workers with special protection of employment relations.

For example, the following notice periods may be provided for an indeterminate contract:

• 2 weeks – when the employee was employed with that employer less than 6 months;
• 1 month – when the worker was employed by that employer at least 6 months;
• 3 months – when the employee was employed by that employer at least 3 years.

Reasons for termination in Supreme Court case law

The loss of the right to pursue a profession justifies the employer's termination of working conditions and pay. It is not for the employer to ensure that the worker is admitted to the examinations in due time, depending on the outcome of which it is possible to continue the work.

This thesis was confirmed in the judgment of the SN of 6 October 1998[9] . An unjustified economic increase in wages, made immediately before the transition of the establishment to another employer, may justify the termination of the conditions of remuneration.

This statement was confirmed in the judgment of the General Court of 13 April 2000[10]. A long-term, justified illness of the absence of an employee usually justifies the termination of working conditions and pay, especially when he is in charge and it is necessary to provide for the replacement of the absent person.

The conclusion of these claims was found in the judgment of the SN of 16 May 2001[11].

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1 i.e. Journal of Laws of 2018, item 917, Further k.p.

2 i.e. Journal of Laws of 2018, item 1025.

3 reference no. I PKN 232/97.

4 i.e. Journal of Laws of 2018, item 1360.

5 reference no. I UK 90/12.

6 reference no. I PZP 52/93.

7 reference no. I PKN 265/99.

8 reference no. II PK 97/07.

9 reference no. I PKN 368/98.

10 reference no. I PKN 302/99.

11 reference no. I PKN 608/00