Employee's sickness and changing notice

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In essence, an amending termination implies a change in the working conditions and / or pay of the employee. From the point of view of the employee, it is important that the Labor Code requires that the employer who wants to give this type of notice should follow a specific pattern of action. Failure to comply with the legal guidelines may result in the termination being filed in violation of the law, which may lead to a situation in which the employee decides to pursue his or her rights in court.

Forms of amending notice

Pursuant to Art. 41 of the Labor Code, the provisions on termination of an employment contract shall apply accordingly to the termination of work and pay conditions resulting from the contract. This means that to the same extent as in the case of termination of an employment contract, the same form of amending notice is applicable when submitting such a declaration. As well, to a similar extent, there is protection against the termination by the employer of the terms and conditions of work or remuneration resulting from contracts concluded for an indefinite period, that is:

  1. termination of working conditions or remuneration may be made only for justified reasons;
  2. the submission of a statement on termination of the terms and conditions of work or pay may take place only after the consultation of the intention to terminate with the trade union has been exhausted.

The amending notice consists of two elements: the termination of the employment contract by the employer and the proposed new terms and conditions of the employee's further employment.

The notice of termination of the terms of employment or remuneration is deemed to have been made if the employee has been offered new terms in writing.

The employee has the right not to accept the new terms, but then the employment contract is terminated upon the expiry of the notice period, which is adequate to the notice period that should be applied upon definitive termination of the employment contract.

In the case of a change of termination, the construction is based on the presumption that the lack of the employee's declaration of refusal to accept the proposed terms before the end of the half of the notice period means the employee's consent to the new terms proposed by the employer. In order for the presumption to be considered effective, the employer's letter stating the working or pay conditions should contain an instruction on this matter. In the absence of such a notice, the employee may submit a declaration of refusal to accept the proposed conditions by the end of the notice period.

It is necessary to indicate that the protection of employees in the pre-retirement age, which was guaranteed in the event of termination of a definitive employment contract pursuant to Art. 39 of the Labor Code, may, in the event of a amending termination, be somewhat mitigated.An employer may not terminate an employment contract with an employee who is not more than 4 years old before reaching the retirement age, if the employment period enables him to obtain the right to retirement pension upon reaching that age. However, according to Art. 43 of the Labor Code, using the structure of the amending notice, the employer may terminate the terms of employment or remuneration of an employee, such employee, if the notice has become necessary due to:

  • introducing new remuneration rules for all employees working for a given employer or for the group to which the employee belongs;
  • loss of the ability to perform the current work, or loss of the rights necessary to perform it through no fault of the employee, confirmed by a medical certificate.

At this point, it should be noted that the linguistic interpretation of Art. 43 of the Labor Code it follows that the exclusion of pre-retirement protection upon amending notice applies only to the introduction of new principles of remuneration. By the "principles of remuneration" of Art. 43 point 1 LC should be understood as the rules resulting from the provisions of the labor law, specifying the amount and the principles of awarding to employees rates of remuneration for work of a specific type or for a specific position, as well as other (additional) components of remuneration, if they were provided for the performance of a specific job (Article 78 § 2 of the Labor Code ). This provision does not include the "rules for granting other work-related benefits", including, for example, severance payments in connection with the employee's retirement or disability pension. Article 43 (1) of the Labor Code Therefore, it does not constitute grounds for termination of the employee referred to in Art. 39 of the Labor Code, working conditions or remuneration in the scope related to retirement and disability severance pay.

Due to the fact that the notice of amendment may be made only for justified reasons, the reason for the termination of the terms and conditions of work and pay must exist on the date of making the notice of termination, and must also be real.

An employee who has been terminated working or pay conditions has the right to pursue the claims provided for in Art. 45 § 1 of the Labor Code i.e. investigating that the submitted termination of an employment contract concluded for an indefinite period is unjustified or violates the provisions on the termination of employment contracts. Moreover, even the adoption of new terms of employment by an employee does not deprive him of the right to these claims pursued in proceedings before the labor court. It should be clearly emphasized here that pursuant to Art. 42 § 1 of the Labor Code the provisions on the termination (and therefore also on claims) of an employment contract apply to the notice of termination in an appropriate manner.

Employee's sickness and changing notice

Pursuant to Art. 41 of the Labor Code, the employer may not terminate the employment contract during the employee's leave, as well as during other justified absence of the employee at work, if the period entitling to terminate the employment contract has not yet expired.

This provision shall also apply accordingly in the event of an amending notice. The period of protection begins in the event of an employee's absence from work due to an illness rendering him unable to work or when he ceases to work for the same reason.

It is assumed that this is a special provision that provides protection against termination of the employment contract by an employee, and the condition for this protection is the employee's absence from work on a specific day of already diagnosed sick inability to work. The decisive condition for covering an employee with protection is therefore a justified absence from the workplace, and not a later diagnosed sick incapacity to work.

However, the provisions on collective redundancies shall apply to changes made to a greater number of employees, when as a result of such terminations, the employer has had at least five redundancies within the meaning of Art. 1 clause 1, first subparagraph, point a) Council Directive 98/59 / EC of 20 July 1998 on the approximation of the laws of the Member States relating to collective redundancies.

Therefore, in accordance with the Act on special rules for terminating employment relationships with employees for reasons not related to employees, when terminating employment relationships with employees under collective dismissal, Art. 38 and 41 of the Labor Code with some exceptions.

Nevertheless, the termination of the working conditions and remuneration of employees in the situations referred to in Art. 41 of the Labor Code, i.e. staying on the so-called sick leave is allowed regardless of the duration of the leave or other justified absence of the employee from work.

The employer may change the employee's notice even if the employee is absent from work due to illness, but only in a situation where the so-called collective redundancies to which the Act on special rules for terminating employment relationships with employees for reasons not related to employees applies. The 2003 Act on special rules for terminating employment relationships with employees for reasons not related to the employee expressly states that it applies to "termination by an employer of at least 20 employees of employment relationships for reasons not related to employees, by termination by the employer, and by mutual agreement of the parties.If the employer is not obliged to comply with the aforementioned act, an amendment notice may not be given during the employee's absence due to illness.

Legal basis:

  • Act of March 13, 2003 on the special rules for terminating employment relationships with employees for reasons not related to employees, Journal of Laws 2018.1969, i.e.
  • Act of June 26, 1974, Labor Code, Journal of Laws 2020.1320, i.e.

 

Material prepared by the team of "Tak Prawnik".

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