Group redundancies

In the Polish legal order, the rules on group exemptions are governed by the Act of 13 March 2003 special rules for the resolution of employment relations with workers for reasons not affecting workers[1].European Union law applies in this area Directive 98/59 to 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies[2].

1. Introduction

The Block Exemption Act shall apply to employers employing at least 20 employees, regardless of the status of the hiring organisation. It could be the public or private sector. In determining the level of employment, account shall be taken of all employees working on the employment contract, regardless of their working time.

The law applies primarily when termination of employment is based on termination, but also if the employment relationship ceases by agreement of the parties.

The scope of the legislation does not include situations of immediate termination of employment and termination of the employment contract as a result of the passage of time for which it was concluded.

2. Definition of block exemption

The definition of group exemption is included under Article 1(1) Group Exemption Act. This Article states that ‘the provisions of the Act shall, if necessary, be applied by the employer employing at least 20 employees of employment relations for reasons not affecting employees, by way of termination by the employer, and by agreement of the parties, if within a period not exceeding 30 days of release shall include at least:

• 1) 10 employees when the employer employs less than 100 workers;
• 2) 10% employees when the employer employs at least 100, However, less than 300 workers;
• 3) 30 employees when the employer employs at least 300 or more employees, hereinafter referred to as ‘group exemption’.

The figures indicated for workers shall apply when the employment relationship is terminated at the initiative of the employer under the agreement of the parties, if at least 5 employees.

Determination of the number of workers made redundant requires a certain method of calculation 30-the day-limit referred to in the definition of the statutory concept of group exemption. In the Supreme Court judgment of 20 September 1994[3].

indicated that this time limit should be calculated from the date of submission first declarations of intent of the employer, including termination of the contract or agreement of the parties.

The latter aspect is added because the judgment cited above was handed down on the canva of the previously existing regulation, namely the Act of 28 December 1989 on specific rules for the resolution of labour relations with employees for reasons relating to the establishment and on the amendment of certain laws 4 , where this provision restricts its application only to termination by the employer without the possibility of termination of employment by agreement of the parties.

3. Selection criteria for exemption

The employer, while choosing people to be released for reasons not affecting employees, cannot be guided by total freedom.

A group dismissal employer should demonstrate that he applied objective, fair criteria for the selection of the worker to be dismissed and took into account all the workers concerned by the reasons for his termination of employment. This was confirmed in the Supreme Court ruling with 8 August 2006 5 r.

where the composition of the ruling also indicated that there were no specified number of criteria to be applied by the employer, but the more such criteria the employer actually takes into account, the easier it will be to demonstrate that its assessment was reliable and objective.

The criteria to be followed by the employer may be different types of circumstances concerning the employee, relevant to the needs and interests of the employer, such as: qualifications, education, previous employment, traineeship, acquired qualifications.

The validity of such an approach was confirmed in the Supreme Court judgment of 1 June 2012 6 r. When setting selection criteria, the employer should in particular take into account the principle of non-discrimination between workers.

When choosing specific employees with which the employer intends to terminate the employment relationship, it is worth primarily taking care of the needs of the workplace.

Selection of workers to be released one, the most important criterion for the employer (e.g. professional experience) and omissions of others less relevant to the employer. The employer, when making redundancies, should always follow the principle of retaining as valuable employees as possible in the company.

It is worth noting that the established criteria for the selection of workers for dismissal in the form of a level of qualification or traineeship do not exclude the possibility of dismissal of a staff member having a higher level of professional qualifications and traineeship if that worker does not respect the discipline of work. This thesis was confirmed in the Supreme Court judgment of 6 March 2003 7 .

4. Group exemption procedure

Group exemptions should be carried out within the limits set by the Act. First, The employer is obliged to consult the company's union organisations with a view to carrying out a group exemption.

In such a situation, the employer shall provide in writing to the trade union organisations information on: the reasons for the intended collective dismissal, the number of employees employed and the professional groups to which they belong, the professional groups of workers covered by the collective dismissal intention, the period during which such dismissal will take place, the criteria for the selection of employees, the order of dismissals made and the proposals for the settlement of labour matters related to the intended collective dismissal, and, if they include cash benefits, the employer shall additionally provide a method for determining their amount.

An employer who does not have trade union organisations shall consult employees' representatives.

The information communicated to the unions shall be provided in writing by the employer to the competent district office of work, excluding information on how to determine the amount of cash benefits for employees. The employer is obliged to consult the trade unions in order to conclude an agreement on collective redundancies once this information has been communicated to the trade unions. The Act sets the time for these consultations at 20 days.

Where it is not possible to reach an agreement between the employer and all trade union organisations and representative organisations, the rules of procedure concerning collective redundancies shall be laid down by the employer in the rules of procedure, taking into account, as far as possible, the proposals made during the consultation by the trade union organisations.

In the event of an agreement or in the event of an exemption regulation, the employer is required to notify in writing the competent district office of employment of the arrangements for group dismissal, including the number of employees employed and dismissed and the reasons for their dismissal, the period during which the dismissal is to be made, as well as the consultation of the intended collective dismissal with the works union organisations or with the employees' representatives selected in accordance with the procedure adopted by the employer concerned.

Consultation procedures with representatives of employees are, as is the obligation to notify the dismissals of the competent public authority, a standard resulting from international law, inter alia. Directive 98/59 and International Labour Organisation Convention No. 158 8 .

5. Protection of workers

The termination of the employment relationship may not take place before the expiry of the 30 days from the date of notification to the district labour inspector and, where not required, not earlier than after the expiry of the 30 the dates from the date of conclusion of the agreement or the issuing of the Rules of Procedure. In the absence of an agreement on dismissal, the employer is required to consult the trade union individually on each planned solution in a way Article 38 Act on 26 June 1974 - Labour Code 9 , which provides that the employer shall notify the union organisation representing the employee in writing of his intention to terminate an employment contract concluded for an indefinite period, giving the reason justifying the termination of the contract.

6. Summary

An attempt was made in the article to present the legal framework of the institutions for collective redundancies in Polish legislation, drawing on its normative content from EU law.

In 2018 reported 30,200 staff, as reported in source note numbered 10, in the framework of applications to county labour offices in the event of collective redundancies. In 2019 The expected trend will be increasing and more employers will benefit from this institution.

This applies in particular to large companies based in the largest Polish cities.

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