Termination of employment with a worker on parental leave

The result of the termination of the employment contract is the termination of the employment relationship. The termination of the contract can occur both when both parties to the relationship, i.e.

the employer and the employee make such a decision (agreement of the parties), as well as when one of the parties wants to end the employment relationship and submit to the other party a declaration of intent (denunciation of the contract, termination of the contract without notice).

Termination of the employment contract may also be the result of a legal event causing the termination of the employment relationship by law (time elapsed, performance of a specific job, termination of the contract).

The present study aims to approximate the possibility of termination of employment with an employee who is on parental leave.

1. Introduction

A catalogue of ways to end the employment relationship has been presented under Article 30 Act on 26 June 1974 Labour Code 1 (Further as k.p.).

Among the ways to terminate the employment contract are: termination by agreement of the parties, termination by termination, termination without notice, and termination of the contract over the time it was concluded.

It is worth pointing out that to 22 February 2016 there was an additional title to end the employment relationship, namely that the employment contract was terminated on the date of completion of the work for which the performance was concluded. However, the legislature has decided to remove this alternative form by updating 2 k.p.

It should be pointed out that termination instruments are not absolute and are subject to a number of restrictions, i.e. there are categories of workers who are granted enhanced legal protection against loss of employee status. These categories may include those who are members of staff councils. 3 , trade union members 4 or those on parental leave, for example.

2. Conditions resulting from the Labour Code

According to Article 1868 The employer may not terminate or terminate an employment contract from the date on which the worker entitled to parental leave applies for:

• 1. Allowance of parental leave until the end of this leave;
• 2. Reduction of working time — until the date of return to the unremarked working time, but no longer than for the total period 12 months.

In the above cases, termination of the contract by the employer is only allowed if the employer is declared bankrupt or liquidated, and if there are reasons justifying termination of the contract without notice by the employee.

In addition, this provision specifies that if a worker applies for parental leave or a corresponding reduction in working time is made earlier than 21 days before the beginning of the exercise of this right, the protection in question starts to apply to 21 days before the start of taking leave or reduced working time.

On the other hand, in the event that a worker submits the application in question after an action to terminate the employment contract, the contract shall be terminated within the time limit resulting from the action.

3. Specific arrangements for termination of employment

It is also appropriate to refer to specific regulations relating to the possibility to terminate employment contracts with employees for reasons not affecting them and resulting from the Act on 13 March 2003 special rules for the resolution of employment relations with workers for reasons not affecting workers 5 (hereinafter as: Group Exemption Act). According to Article 10(1)(2) with regard to Article 5(3-6) and Article 8 Group Exemption Act, employer to whom this Act applies (employees at least 20 staff) may, for reasons not affecting employees, if these are the sole reason justifying termination of employment, terminate employment relations by way of notice with employees whose employment relationship is subject to separate special provisions of protection against termination or termination and for whom it is permissible to terminate the employment relationship within the framework of a collective dismissal, provided that no objection has been raised by the trade union organisation within the time limit 14 the days after receipt of the notice of intended termination.

This provision is a provision specific to the abovementioned general regulation from Article 1868 It follows, therefore, that in the case of dismissals for reasons not affecting the employee, it is not necessary to liquidate or declare the employer bankrupt in order to give a job contract to the person on parental leave. Similarly, K. Walczak also claims 6 , This is the opinion of R. Lisicki and M. Frączek[7].

It is worth noting that some of the representatives of labour law think, citing systemic and practical interpretation, that although this does not result from the literal wording of the rules, it is appropriate to apply the contract to workers on parental leave. Article 5(3) Group Exemption Act. This means that a contract of employment for a worker receiving parental leave may be terminated when the leave has been granted at least 3 months[8].

Of course, it should be pointed out that the application of the above-mentioned regulations will be admissible, unless the reasons for the termination of the employment contract concern the employee and constitute the sole reason for the termination of the employment relationship.

According to the Supreme Court ruling of 19 January 2016 9 , where the employer applies certain rules (criteria) for the selection of workers for dismissal when carrying out the reduction of employment for organisational reasons, these criteria should be referred to, indicating the reason for the termination of the temporary employment contract (Article 30(4) k.p.), based on Article 10(1) Group Exemption Act.

Where the termination of an employment contract concerns a worker selected by the employer from more people employed in the same or similar jobs, the reason for this notice is not only organisational changes or job cuts, but also the selection criteria for the worker concerned.

In the employer's statement of termination of a fixed-term employment contract due to liquidation one from similar jobs should be indicated (based on Article 30(4) (k.p.) also the reason for selecting a worker for dismissal (choice criterion), unless it is obvious or known to the worker.

While the criteria for the selection of workers for dismissal are not listed in any common provision of labour law, the court examining the dismissal of a worker from the termination of a contract of employment made in the framework of a reduction of posts must not hold the employer in the conduct of staff policies and impose on him his own set of those criteria, but the appointment of persons with whom the termination of employment is to take place within the framework of individual or group dismissals must not be arbitrary and of any character.

4. Additional obligations of the employer

It should also be remembered that in the event of termination of an employment contract with an employee for reasons not affecting him, the employer is obliged to pay his severance allowance in accordance with Article 8 Group Exemption Act. According to that provision, the staff member shall be entitled to a cash clearance of:

• • one-month remuneration if the worker has been employed by the employer less than 2 years;
• • a two-month salary if the worker was employed by the employer concerned from 2 to 8 years;
• • a three-month salary if the employee was employed by the employer above 8 years.
• 5. Summary

It should be pointed out that there is a possibility to terminate an employment contract on grounds that do not apply to workers who have received parental leave for at least 3 months. This also applies to those who have requested on the basis of Article 1867 k.p. on reducing the working time.

The other options for unilateral termination of employment with such an employee are very limited, as the termination of the contract by the employer is only allowed if the employer is declared bankrupt or liquidated, and if there are reasons justifying termination of the employment contract without notice from the employee Article 52 p.).

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