Order penalties - when can they be applied?


The desired employee behavior cannot always be achieved through the use of awards or distinctions. In cases where the employee does not fulfill his tasks properly and violates the duties entrusted to him, it often becomes necessary to act through sanctions.

Order responsibility and material responsibility

The Labor Code regulates two types of employee liability towards the employer - organizational (Articles 108–113) and material (Articles 119–122).Both are associated with negative consequences for the employee as a result of violating the duties entrusted to him. However, there is a fundamental difference between them. Order responsibility, as its name implies, serves to "bring the employee to order", that is, to persuade him not to neglect the proper performance of his tasks in the future. In the case of material liability, the issue of compensation by the employee for the damage caused to the employer as a result of the failure to perform or improper performance of his duties comes to the fore. As material liability, the employee may be required to pay the employer appropriate compensation.

Order penalties

Employers impose penalties on employees when applying order liability. Pursuant to Art. 108 § 1 of the Labor Code, for failure by an employee to comply with the established organization and order in the work process, occupational health and safety regulations, fire regulations, as well as the adopted method of confirming the arrival and presence at work and justifying absenteeism, the employer may apply a reprimand and reprimand. Although the Code does not explicitly state it, the former is considered to be milder and the latter is considered to be more severe.

Moreover, as stipulated in Art. 108 § 2 of the Labor Code, for failure by an employee to comply with occupational health and safety or fire regulations, for leaving work without justification, appearing for work under the influence of alcohol or drinking alcohol while working - the employer may also apply a financial penalty. However, it is not allowed to apply several penalties for the same breach of obligations.

Financial penalty and compensation

Pursuant to Art. 108 § 3 of the Labor Code, both for one violation and for each day of unexcused absence may not be higher than the employee's one-day salary, and the total amount of fines may not exceed the tenth part of the employee's remuneration to be paid, after the deductions referred to in art. 87 § 1 items 1-3 of the Labor Code (deductions of sums enforced under enforcement titles for the satisfaction of alimony benefits and for the coverage of receivables other than alimony payments and withholding of cash advances granted to an employee). The proceeds from the fines are allocated to the improvement of health and safety conditions at work (Article 108 § 4 of the Labor Code).

It follows from the content of the above regulations that the fine is not compensatory - its amount does not depend on whether the employer has suffered a loss as a result of breach of employee duties and what is its amount. The purpose of the penalty is different: it serves to stigmatize undesirable behavior of the employee, and its financial dimension is of secondary importance.

Criteria for punishment

Pursuant to Art. 111 of the Labor Code, when applying the penalty of order, the type of breach of employee duties, the degree of the employee's fault and his previous work relationship are taken into account in particular.

When can an employee be punished?

The employer may hold the employee liable for order when the employee culpably violates his duties in the scope of the work order (guilt and unlawfulness). Examples of violations of employee duties that may result in the imposition of order penalties include unjustified delay to work, leaving work without just cause, not allocating working time to perform tasks under the employment contract, disturbing peace at the workplace, inappropriate behavior towards superiors, employees or contractors, failure to follow orders from superiors. The employer is not obliged to apply the grading of ordinal penalties, which means that he is free to choose the penalty; for example, he does not have to apply the penalty of admonition first, and only in the next violation of the employee's duty - a reprimand. The choice of the penalty depends solely on the assessment of the degree of breach of order and the accompanying circumstances.

Time to make a decision on punishment

In art. 109 § 1 of the Labor Code specifies the time frame within which it is possible to impose a disciplinary penalty on an employee. Pursuant to this provision, order liability cannot be applied after 2 weeks from becoming aware of a breach of the employee obligation and after 3 months from committing this breach. As you can see, the employer has little time to make a penalty decision. This is justified, as the impact of penalties is effective only when a relatively short period of time has elapsed between the punishable act (behavior) and the imposition of the penalty.

Example 1.

On August 26, 2019, rumors reached the employer that employee X did not comply with the command issued to him by his superior to send an appeal against an administrative decision on June 10, 2019, in which a building permit was refused for the employer's new headquarters. If these rumors were true, failure to deliver the appeal would mean that the deadline for bringing it had expired, making it impossible to challenge a negative administrative decision.

The employer ordered an investigation to be carried out, as a result of which the rumors were confirmed on August 28, 2019. In these circumstances, the date on which the employer became aware of the breach of the employee obligation is August 28, 2019 (i.e. the date on which the employer obtained certain knowledge about the event; rumors , incomplete information is not enough). So, 2 weeks from becoming aware of the violation will expire on September 11, 2019, and 3 months from committing the violation - on September 10, 2019. Therefore, the employer will be able to punish the employee for the violation in question no later than September 10, 2019, because he must comply with both of them at the same time. terms (2-week and 3-month).

Obligation to hear the employee

Pursuant to Art. 109 § 2 of the Labor Code, the penalty may be applied only after the employee has been previously heard (if the employee cannot be heard due to his absence, the running of the 2-week period in which he may be punished does not start, and the commenced period is suspended until the date of his appearance. an employee goes to work - Art. 109 § 3 of the Labor Code). In the judgment of 16 June 1999, I PKN 114/99, the Supreme Court indicated that the employer should provide the employee, at a specific place and time, with the possibility of oral or written explanations. If the employee does not use this option, the employer may impose an order penalty despite the failure to listen to the employee. He cannot be compelled to give an explanation.

Notification of a penalty

The employer shall notify the employee of the penalty applied in writing, indicating the type of breach of employee obligations and the date of the breach by the employee, and informing him of the right to raise an objection and the date of its submission. A copy of the notification is submitted to the employee's personal files (Article 110 of the Labor Code).

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When an employee disagrees with the punishment

Art. 112 of the Labor Code regulates the issue of an employee's objection to the imposition of an order penalty. If, in his opinion, the application of the penalty occurred in violation of the law, he may raise an objection within 7 days from the date of notification of the penalty. The employer decides whether to accept or reject the objection after considering the position of the trade union organization representing the employee. Failure to reject the objection within 14 days from the date of its submission is tantamount to taking into account the objection. An employee who has lodged an objection may, within 14 days from the date of notification of its rejection, apply to the labor court to revoke the penalty applied to him. If the objection to the applied fine is upheld or the penalty is revoked by the labor court, the employer is obliged to reimburse the employee for the equivalent of the penalty amount.

Recognition of the penalty as void

Pursuant to Art. 113 of the Labor Code, the penalty is considered void (the penalty is obliterated), and the copy of the notification about the penalty is removed from the employee's personal files:

  • after one year of impeccable work, whereby the employer may, on his own initiative or at the request of the company trade union representing the employee, deem the penalty void before the expiry of this period;

  • if the employer's objection is upheld or the labor court issues a decision to waive the penalty.

The ordinal penalty is obliterated, not the facts underlying its application. Only the penalty is considered void, and a copy of the notification of the penalty is removed from the employee's personal files after one year of his impeccable work. The event itself, which was the basis for the application of the order penalty, is not blurred, however, and may still be relevant to the employer's decisions regarding the employee, e.g. the decision to entrust the employee with specific tasks (the employer has the right to wonder to what extent, given the previous breaches of duties, the employee promises that he will be able to fulfill these tasks properly) - see the judgment of the Supreme Court of October 12, 2017, I PK 300/16.