Amendment of regulations governing mobbing in Polish law

Discussion on workplace mobbing was initiated by Swedish psychiatrist of German origin Heinz Leymann in years seventy The 20th century.

The scientist defined mobbing as “mental terrorism in professional life, characterized by hostile and unethical behaviors which are repeated systematically by one or more people, mainly directed against a single person, who as a result is deprived of a chance of assistance and defence through repeated mobbing behaviour.

These effects are very common (at least once a week) and for a long time (at least by six months). The high frequency and long duration of this hostile behavior results in significant mental, psychosomatic and social problems" 1 .

The following study aims to approximate legal solutions for mobbing in Polish law, as well as to indicate the latest changes in the relevant regulations.

1. Introduction

first Member States where legal attempts were made to regulate mobbing were Sweden, France and Belgium. In Poland, regulations governing mobbing have been incorporated into the Act of 26 June 1974 Labour Code 2 (hereafter as: 1 January 2004, after addition Article 943 k.p. As defined under Article 943(2) k.p.

3 : „mobbing means actions or behaviours relating to an employee or directed against an employee, consisting of persistent and long-term harassment or intimidation of a worker, causing him to have a low professional suitability assessment, causing him or her to be humiliated or ridiculed, isolated or eliminated from a team of associates.’

Attention should be paid to the fact that the conditions of persistence and long-term viability which are set out in the definition of statutory lobbying should be met together.

Such interpretation of the provision was confirmed in the Supreme Court judgment of 5 December 2006 4 This is very important because, in many places in the law system, the conjunction in the form of a ‘i’ is read in various ways and raises many doubts.

From the point of view of legislative technique, the above situation is a good example of the compatibility of the legislative drafting with the subsequent judicial interpretation.

2. Obligation to prevent mobbing

Under Article 943(1) The legislator imposes an obligation on employers to prevent harassment. However, the laconic design of the provision does not indicate how this obligation must be performed. Currently, the practice of setting up company anti-mobbing procedures, most commonly referred to as internal anti-mobbing policy, has developed in the legal trade.

Attention is drawn to the fact that solutions for internal anti-mobbing policy in each workplace should be based on two procedural cores – for complaints and prevention. That position was also justified in the Supreme Court’s judgment of 21 April 2015, in which the court stated that: ‘the obligation to prevent mobbing is not just about action on cases of this phenomenon, but also on preventive action which should be realistic and effective’ 5 .

3. Employee Mobbing Protection

Any employee who considers that he has been treated with behaviours that may take the form of mobbing should be able to complain to his employer. In such a complaint, it is necessary to specify what actions or behaviours the superior or co-workers consider to be mobbing.

In addition to the definition of behaviour, a specific individual should be identified (by name) who, according to the complainant, is the perpetrator of the mobbing.

Furthermore, the complainant is required to provide a justification and to provide evidence that the situations in question may constitute a mobbing which has actually occurred in the undertaking’s reality.

It is worth mentioning that mobbing occurs not only in relation to the employer (the person representing the employer) – the employee, but also in horizontal relations, i.e. among co-workers.

In other words, the person using mobbing (so-called mobbing) may be the employer, but also any other employee who is allowed to behave reprehensiblely towards another employee. one of the most recent rulings permitting this possibility is, for example, the judgment of the Kalisz District Court of 1 December 2016, in which the court expressly stated in the statement of reasons that ‘(...) another worker may also be a mobber ...’ 6 .

4. Health Disorder Compensation

Under Article 943(3) k.p., the legislator states that an employee whose mobbing has caused a health disorder may claim the appropriate sum from the employer for compensation for the damage suffered. It is worth noting that, as for employment relations, there is no indication of the lower, or even more of the upper limit of compensation for the disturbance caused by mobbing. As a result, the courts of work, as competent in decisions on mobbing matters, have a great deal of freedom to rule on adequate redress.

In support of this argument, it is worth to cite the Supreme Court's ruling from 29 March 2007, which states that: ‘The mobbing institution is a qualified subsidiary of labour law, and sanctions for its application are labour law events that the labour courts judge primarily on the basis of Article 943 k.p., although this is done with regard to the achievements of civil judicatura in the field of compensation for the wrong suffered (Article 445(1) and Article 448 k.c.), as well as compensation for health damage (Article 444(1) (c)’ 7 .

This means that the court ruling in the case of compensation against Article 943(3) k.p. should take into account both property and non-material (moral losses) aspects of injury in determining the total compensation.

In practice, on the basis of the above criteria, the calculation of the compensation amount should, for example, cover current and future treatment costs, professional retraining, and the correction of the moral harm associated with mobbing and health damage.

5. Mobbing compensation

Last amendment 8 ed. 16 May 2019, which brought a number of changes, also affected the content Article 943(4) k.p.

Recipe to 7 September 2019 will function as follows: "A worker who has terminated his employment contract as a result of mobbing shall have the right to claim compensation from his employer of not less than the minimum remuneration for work determined on the basis of separate provisions".

On 7 September a new editorial of the provision, which is complementary but significantly increasing the scope of protection for a mobbing worker (a worker who has suffered mobbing or has terminated a contract of employment as a result of mobbing, has the right to claim compensation from his employer of not less than the minimum wage for work determined on the basis of separate provisions).

This amendment will not only allow former workers to benefit from judicial protection who, before bringing an action for damages, have dissolved their employment relationship by denunciation or immediately because of the employer's fault Article 55(11) k.p.

9 because of a serious breach of the obligations of the employer, which may be a failure to prevent mobbing in the workplace, but also those who have suffered damage as a result of the use of mobbing, whether they are in employment relationship or whose employment contract has been terminated by the employer.

The termination of the employment relationship in the form of an agreement of the parties, which was preceded by a mobbing, is also eligible for a basis giving the employee the right to claim compensation for this.

According to Article 943(5) an employee, in order to benefit from the possibility of seeking compensation in the event that he himself has decided to terminate the employment contract due to mobbing, should make such a termination of the employment relationship in writing in the form of a statement in which it appears that mobbing should be indicated as the reason for the termination of the employment relationship.

Given that the legislator, when referring to the reason for such termination of employment, refers to the legal definition of mobbing, it must be stated that the employee should also describe in his statement the facts (actions or behaviours), as well as the time context continence and longevity) consisting in the case of mobbing. Failure to comply with the obligation resulting from Article 943(5)) must be interpreted as closing the road for the employee to pursue the compensation in question.

6. Summary

The latest changes affecting the shape of regulations regulating the phenomenon of mobbing in Polish law should be assessed very positively.

Finally, the legislator has put an end to blocking the possibility of workers seeking compensation, for whom the employer has declared an employment contract or whose employment contract has been terminated by agreement.

The existing wording of the rules - which will apply to 7 September 2019 – granted protection only to those workers who decided to terminate the employment agreement themselves as a result of mobbing.

The new rules, most importantly, will also protect those workers who, despite regular mobbing practices, decide to stay in the same workplace.

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1 hours. Leymann, The Mobbing Encyclopedia, 1996, http://www.leymann.se

2 Journal of Laws of 2019, item 1040.

3 Ibid.

4 reference no. II PK 112/06.

5 reference no. II PK 149/14.

6 reference no. V PA 39/16.

7 reference no. II PK 228/06.

8 Journal of Laws of 2019, item 1043.

9 Ibid