Replacement contract and employment of two people to replace one absent employee

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A replacement contract is a special type of fixed-term contract - a flexible form of employment that employers use in cases where there is a need to temporarily fill an absent employee's job.

Replacement contract

Pursuant to Art. 251 § 4 sec. 1 of the Labor Code, the employer may conclude a fixed-term employment contract to replace an employee during his justified absence from work - if its conclusion in a given case serves to satisfy the actual periodic demand and is necessary in this respect in the light of all the circumstances of the conclusion of the contract. In such a case, the employment contract should clearly define this purpose (Art. 29 § 11 of the Labor Code) by indicating the name and surname of the absent employee and including information that it is the purpose of his replacement that the given contract is concluded.

Example 1.

Mr. Jan Nowak is employed by the employer in the position of procurement. He has been absent from work for a long time due to illness, and his absence is expected to continue for several more months. The employer could not assign another employee already employed to replace Mr. Jan, because the scope of duties assigned to the position of procurement is so wide that it cannot be combined with performing other duties for a long time. Therefore, after recruiting, the employer hired a new employee in a procurement position for a limited period to replace Mr. Jan. The employment contract states: "The contract is concluded to replace an employee of Jan Nowak."  

Judgment of the Supreme Court - Chamber of Labor, Social Security and Public Affairs of 17 May 2016, II PK 99/15

It is unacceptable to conclude a contract for the period of replacing an employee who was not absent from work, but only performed other work entrusted to him by the employer.

The date of termination of the replacement contract

A replacement contract, like any fixed-term contract, is terminated after the period for which it was concluded (Article 30 § 1 point 4 of the Labor Code). However, while in the case of an ordinary contract for a definite period, the last day of its validity is identified by indicating the contract a specific calendar date or time period (e.g. "the contract is concluded for 6 months"), in the case of a replacement contract, the end point is the end of the justified absence from work of the replaced employee.

Decision of the Supreme Court - Chamber of Labor, Social Security and Public Affairs of 24 April 2012, I PK 233/11
Upon the replacement of the replaced employee to work, the condition provided for in the replacement employment contract with the employee was fulfilled and his contract was terminated upon the replacement of the replaced employee. Subsequent absence of the replaced employee may not alter this assessment.

Example 2.

The last day of Joanna's justified absence from work was March 16. Therefore, it is the day of termination of a fixed-term employment contract concluded to replace Ms Joanna with Ms Agnieszka.

As you can see, the way the duration of the replacement contract is determined is flexible, which should be considered beneficial to the employer. By employing a replacement employee, the employer does not risk - as in the case of an ordinary fixed-term contract - that it will inadequately determine its duration: as too long (the contract will end before the replaced employee returns to work) or too short (the contract will end after the return to work). the replaced employee for work, i.e. it will apply at the time when the replacement is no longer needed).

The attractiveness of the replacement contract for the employer poses the risk of abuse of this form of employment. One of the issues to be considered in this context is the admissibility of employing two or more employees to replace one absent employee.

Can two people be hired to replace one employee?

Replacement employment consists in the fact that during the justified absence of a specific employee, another person is employed under the employment relationship to replace the absent person. This means that the tasks of the replacement employee should coincide with the scope of tasks of the replaced person.

The provision of art. 251 § 4 sec. 1 of the Labor Code refers to a fixed-term employment contract to replace an employee during his justified absence from work, without prejudging that it is necessarily one contract. Therefore, it is not precluded that two or more contracts concluded for the purpose of replacing an absent employee will be valid at the same time. Therefore, it should be concluded that the admissibility of concurrent validity of such contracts should not raise any doubts, provided that the sum of the working hours for which these contracts have been concluded corresponds to the working time within which the replaced employee is employed, or at least does not exceed this dimension.

Example 3.

Mr. Stanisław is employed on a 1-time basis. Due to his excused absence from work, the employer employed, in order to replace Mr. Stanisław, Mr. Łukasz for 0.5 full-time and Mr. Marek also for half-time (1 time in total).The working time of the replacement employees corresponds jointly to the working time of Mr. Stanisław.

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The working time of the replacement employee

In connection with the arrangements made so far, it is worth considering whether the working time of a replacement employee or the total working time of two or more replacement workers may never exceed the working time of the replaced employee.

If it is considered that it is permissible to employ replacement workers in the amount of working time exceeding the working time of the replaced employee, one should take into account the risk of abuse - unlimited employment of employees under the guise of having to replace absent employees. It should be remembered that the replacement contract gives the employee less rights than a regular fixed-term contract and, consequently, imposes less obligations on the employer.

As already indicated, the duration of the replacement contract is not guaranteed to the employee in the sense that when concluding the contract, as well as during its term, the employee does not know when the contract will actually end, because it is not known for sure when the replaced employee will return to work. In addition, the replacement contract is not included in the number of three consecutive fixed-term contracts, after which - in accordance with Art. 251 § 1 of the Labor Code - another fixed-term contract cannot be concluded with an employee; if the parties wish to continue employment, they must then conclude a contract for an indefinite period. However, in the case of a pregnant employee, her replacement contract is not extended until the day of childbirth, as in the case of ordinary fixed-term contracts (Art. 177 § 3 and § 31 of the Labor Code).

Nevertheless, it would be difficult to accept a very strict approach to determining the working time of a replacement worker as a dimension that should be in line with the dimension of the replaced worker. This is illustrated in the example below.

Example 4.

The employer intends to hire a person to replace an absent employee whose working time is 0.75 full-time. As a result of the recruitment, a candidate was selected whose qualifications are adequate to work in the position to be replaced, but the level of these qualifications is lower than the level presented by the employee to be replaced. Therefore, the employer assessed that it will not be possible to perform the tasks assigned to the position to which the recruitment relates to the required qualitative and quantitative level by the selected candidate with the employment of 0.75 full-time employees. Therefore, the employer hired this person for a replacement at a higher level - 1 full-time job. Such action by the employer, if it is actually justified by objective reasons, may be considered correct.

In conclusion, Art. 251 § 4 sec. 1 of the Labor Code is formulated in such a way that it does not exclude employing two or more employees to replace one employee and - what is more - in justified cases, the working time of the replacement employee (replacement employees) may exceed the working time of the replaced employee. However, these solutions should be used only to the extent necessary to ensure effective replacement, to meet the actual periodic demand and to be necessary in the light of all the circumstances of the conclusion of the replacement contract.