LABOUR LAW ALERT – Edition: second quarter of 2019

Amended legislation | Significant amendments to the Labor Code

On 7 September 2019, the Act of 16 May 2019 amending the Act – Labor Code and certain other acts will come into force. The amendments concern issues related to equal treatment of employees, protection of persons enjoying parental entitlements, mobbing, issuance of work certificates and rules regarding taking into account a plea of limitation of claims under an employment relationship.

  • [Discrimination] Definition of the discrimination has been modified. A seemingly minor change in the definition of discrimination – through deletion of the words “in particular in respect of” from Art. 113 and Art. 183a § 1 of the Labour Code is aimed at opening a catalog of possible causes of discrimination. As a result, any unequal treatment of employees, unjustified by objective reasons, may be considered as discrimination and employers will have to keep a watchful eye on all employee relationships and possible inequalities.
  • [Parental rights] The Act introduces a number of changes equating the situation of an employee being a member of the immediate family other than a parent, on maternity or parental leave with the situation of the employee-father raising his child. The changes primarily concern the issue of protection against termination of the employment contract, remuneration for the time of being out of work and granting of annual leave. It was necessary, since employees – also other members of the immediate family became eligible to take maternity and parental leave,to grant to such persons special protection against termination of employment and rights analogous to the ones enjoyed by female employees and employee-fathers bringing up the child who are entitled to such leaves.
  • [Damages for mobbing] Particular attention should be given to the amendment pertaining to damages for mobbing. The current wording of Art. 94 (3) of the Labor Code provides that an employee (1) may claim compensation from the employer if they suffered from health disorder as a result of mobbing and (2) damages, but only when the employee terminates the employment contract as a result of mobbing. The new wording of § 4 of this Article sets forth the employee’s right to claim damages even, if the employment contract has not been terminated. This amendment enables employees who, despite mobbing, could not terminate their employment contract due to their living and economic situation to claim damages.
  • [Request for work certificate correction] The deadline for the employee to apply to the employer for correction of the work certificate and submission of the request for correcting the work certificate to the labor court will be extended from 7 to 14 days.
  • [Limitation of claims] The Act introduces a change intended to harmonize provisions of the Labour Code on taking into account the plea of limitation of claims with the provisions of the Civil Code and makes it explicitly clear that the limitation of claims under the employment relationship is taken into account only, if a person against whom the claim is sought made the charge and not ex officio.

Amended legislation | Amendments to ECP

As of 1 July 2019, the Act on Employee Capital Plans is applicable to the major employers, i.e. having more than 250 employees as at 31 December 2018. As a consequence of remarks submitted towards the applicable provisions, the Act was amended to make its wording more precise and remove obvious errors therein. The amendments became effective as of 25 June 2019.

The amendment changed the definition of remuneration applied for the purposes of employee capital plans. The Act on Employee Capital Plans provided for a cap on the assessment basis of contributions to employee capital plans in the amount of thirtyfold the projected average monthly remuneration in the national economy for a given calendar year, that the amendment abolished.

The deadline for making contributions to the ECP for all employers by the 15th day of the month following the month in which the contributions were calculated and collected was also harmonized. According to the original wording of the Act, employers who settled remunerations for periods shorter than one month used to be able to pay contributions to the ECP until the last day of the month.

Amended legislation | Modified template of  work certificate

On 1 July 2019, the Regulation of the Minister of Family, Labor and Social Policy entered into force amending the Regulation on Work Certificate adapting the template of work certificate to the GDPR’s requirements.

The relevant section with a requirement to provide first names of parents has been removed from the new template of work certificate, as the employee’s data that may not be any longer required by the employer. In addition, the explanations provided in the template were corrected.

Amended legislation | Amended template of post-accident report

On 25 June 2019, the Regulation of the Minister of Family, Labor and Social Policy introducing a new template of post-accident report came into force. The new template does not require to provide, among others, NIP number of the injured person, place of birth or first name of the injured person’s father. The existing forms can be used until stocks are exhausted, however, no longer than until 31 December 2019.

Interpretations

PDPO on inadmissibility of taking random sobriety tests of employees with a breathalyzer
On 27 June 2019, the Office for Personal Data Protection (the “PDPO”) published on the official website an announcement on inadmissibility of conducting a random sobriety tests of employees with a breathalyzer. The position of the PDPO corresponds to the position of the Supreme Court expressed in a judgment of 4 December 2018 (I PK 194/17) and points out that the law does not provide grounds for the employer to independently test employees with a breathalyzer. Furthermore, in the PDPO’s opinion, knowledge about whether a given person is intoxicated pertains to the information on state of health, therefore, from the point of view of personal data protection regulations, sobriety testing could only take place on the employees’ initiative and with their consent.

According to the PDPO, a sobriety test of employees (in particular random or preventive) may not be considered as:

  • a form of monitoring of employees’ work referred to in Art. 223 § 4 of the Labor Code,
  • activities necessary to ensure safe and healthy working conditions for all employees,
  • justified with a legitimate interest of the employer.

In the opinion of the PDPO if an employee is suspected of being under the influence of alcohol, the employer should immediately call appropriate services (e.g. the police) to carry out the sobriety test.

However, it should be noted that an employee may also be denied access to workplace without a test, only on the basis of a justified suspicion of being intoxicated. Evidence in the form of a breathalyzer test may, however, prove to be crucial in the event of termination of an employment contract with an employee because of coming to work in a state of intoxication.

Important projects

Whistle-blowers in the Act on Liability of Collective Bodies
Works on the bill of the Act on Liability of Collective Bodies for Prohibited Acts under a Sanction of Punishment are in progress. Article 13 Sec. 1 of the bill provides for the protection of employees acting as whistle-blowers. A whistle-blower is a person reporting irregularities in the functioning of a collective body, in particular regarding (1) a suspicion of preparation, attempt or committing a prohibited act and (2) failure to comply with obligations or abuse of rights by authorities of a collective body. On the basis of the Act, the whistle-blower is to enjoy special protection against termination of the employment contract. The termination of the employment contract in such a situation will be considered unlawful. In the event of termination of the employment contract following from the whistle-blower’s notification of irregularities, he/she has the right to claim compensation or reinstatement.

Protection will not be granted, if an employee signaling abuse committed the prohibited act in connection with the operations of a collective body. In such circumstances, claims related to the termination of employment contract (Art. 13 Sec. 2 of the bill) may be asserted only after disclosing all relevant circumstances of the act to the collective body and the law enforcement authorities.

Important judgments of the Supreme Court

Resolution of the Supreme Court –  double compensation for defectively terminated employment contract
By virtue of a resolution adopted by the Supreme Court on 4 April 2019 (III PZP 2/19),  in a situation where the employer incorrectly terminated the employment contract upon notice and then terminated it without notice in violation of the provisions, the employee is entitled to claim damages both for defective termination upon notice as well as for the defective termination of the contract without notice.

In the discussed case, the employer terminated the employment contract with the employee upon notice, and then during the period of notice terminated the employment contract without notice due to unexcused absence. The employee appealed to the court and demanded compensation for both termination of the employment contract upon notice and termination of the contract under disciplinary procedure. The courts have found both employer’s acts as unlawful. The Regional Court was in doubt as to whether in such a situation the employee was entitled to one compensation (and if so, on what grounds), or whether the employee might claim as many damages as there were defective acts committed by the employer.

The Supreme Court stated that in the contemplated case the employee was entitled to two claims for damages. According to the Court, when awarding damages, the situation of the employee with whom the employment contract was terminated on notice and then the employment relationship was terminated under disciplinary procedure should be compared with the case of an employee whose employer has only incorrectly terminated the employment contract upon notice. In certain situations, the employee will only be entitled to one compensation (when the contract was terminated without notice on the last day of notice period), and in other cases even up to two full compensations (if termination of the employment under disciplinary procedure prevents from taking advantage of the entire notice period).

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