Termination of employment 2014 - part 1
Termination of the employment relationship may arise as a result of termination or expiry of the employment contract. Termination of the employment contract is related to the will of both or one of its parties. Pursuant to Art. 30 § 1 of the Labor Code, its dissolution may take place:
- by agreement of the parties,
- by a declaration of one of the parties with a notice period,
- by a declaration of one of the parties without the notice period,
- with the passage of time for which it was concluded,
- on the day of completion of the work for which it was concluded.
The termination of an employment contract without taking any additional actions takes place only in the case of points 4 and 5. Other methods of termination of the employment relationship require additional actions by the parties to the contract.
Termination of employment - termination by mutual agreement of the parties
The parties to the contract may propose its termination by mutual agreement of the parties. It is the easiest and at the same time conflict-free way to terminate the employment contract, because in this case there are no time limits. Termination of the employment relationship in this mode requires an unanimous declaration of will by the parties to the contract who decide to terminate the employment relationship within the prescribed period. Under the agreement of the parties, any contract may be terminated, regardless of its type and the period for which it was signed, even during the employee's vacation (Supreme Court judgment of November 12, 2003, file reference number I PK 593/02, MP Pr.-insert. 2004/6/1). Termination of the employment relationship in this form is independent of any restrictions on the termination of employment contracts by the employer, who does not have to consult the intention to terminate the employment relationship by agreement of the parties with the trade union organization representing the interests of the employee.
Termination of the employment relationship - termination of the employment contract
An employment contract may be terminated upon the submission of a written notice by one party to the employment relationship. However, not all contracts can be terminated. Based on Article. 32, 33 and 331 of the Labor Code, the termination of an employment contract is allowed in the event of signing an employment contract for:
- indefinite period of time,
- a specified period longer than 6 months, with the signing of the clause on the possibility of its early termination upon 2-week notice,
- specified time to replace an absent employee.
The correct period of notice must be observed for the termination to be correct. In the case of a contract concluded for a trial period, the notice period is:
- 3 working days, if the trial period does not exceed 2 weeks,
- 1 week, if the trial period is longer than 2 weeks,
- 2 weeks if the trial period is 3 months.
The notice period for replacing an absent employee is 3 business days.
The notice periods for contracts concluded for an indefinite period are longer and, as in the case of contracts for a trial period, their duration depends on the period of employment and amounts to:
- 2 weeks, if the employee has been employed for less than 6 months,
- 1 month, if the employee has been employed for at least 6 months,
- 3 months, if the employee has been employed for at least 3 years.
It should be noted that the notice period for a week, month or a multiple thereof ends on Saturday or on the last day of the month, respectively.
An employee hired for a trial period for a month was terminated on Wednesday, February 19, 2014. The notice period should be counted from Sunday, February 23, 2014 (so that the calendar week has passed) and ends on Saturday, March 1, 2014.
The employee has been employed in the company for 4 years on a contract for an indefinite period and is entitled to it
3 months' notice. Receives the contract termination on February 2, 2014. The notice period begins on March 1, 2014 and ends on May 31, 2014.
When terminating a contract for an indefinite period, it is necessary to provide a reason about which the employee should be informed no later than on the date of termination of the contract. The reason for the termination of the employment contract may be indicated in a separate letter - the judgment of the Supreme Court of November 17, 1998 (file reference number I PKN 331/98) - it must be delivered to the employee earlier or simultaneously with the letter concluding the termination of the contract. This should be a true, specific and understandable reason, because in the event of an employee appealing from the termination of the contract to court, the subject of the court's determination will be the reason given by the employer.
If there is more than one reason for termination, each of them should be given in the notice of termination, as there is a greater chance that the court will find the termination justified if at least one reason turns out to be true.
The declaration of will to terminate the employment contract is considered to be submitted when it reaches the employee in a way that allows the employee to read the content. If the employee refuses to accept the notice, the employer should document the attempted delivery in every possible way, e.g. by sending it by registered letter with return acknowledgment of receipt. In the declaration of will to terminate the employment contract, it is necessary to include an instruction on the employee's right to appeal to the labor court and to indicate the court where the appeal may be lodged. Failure to do so is a breach of the law, but it does not give the employee a basis for compensation or reinstatement - and it may be the reason for restoring the deadline for bringing an action by the employee.
Under certain circumstances, however, the employer is not entitled to terminate the employment relationship with a notice period. This is the case when:
- pregnant employees (Article 177 § 1 of the Labor Code),
- an employee who is not more than 4 years old before reaching retirement age (Article 39 of the Labor Code),
- the duration of the employee's leave, as well as other justified absences from work, if the period entitling to terminate the employment contract without notice has not yet expired (Article 41 of the Labor Code).
He is also obliged to inform trade unions about his intention to terminate an employment contract concluded for an indefinite period, unless the employee is not a member of a trade union and has not applied to him for protection of employee rights (judgment of the Supreme Court of
September 11, 2001, file ref. act I PKN 624/00).
Termination of the employment relationship - termination of the employment contract without notice due to the fault of the employee
Pursuant to article 52 of the Labor Code, the employer may terminate the employment contract without notice due to the fault of the employee in the event of:
- serious breach of basic employee duties by an employee - disciplinary dismissal,
- an employee committing a crime during the term of the employment contract which prevents him from being employed in the position he holds, if the crime is obvious or has been confirmed by a final judgment,
- loss of entitlements necessary for the performance of work in the position held at the fault of the employee.
Termination of the contract in this manner may not take place after 1 month from the employer receiving the information about the circumstances justifying the termination of the contract. The employer is also obliged to consult the trade union organization, which must express its opinion immediately, at the latest within 3 days.