How can an employer withdraw a termination of an employment contract?

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Pursuant to the provisions of the Labor Code (LC), it is permissible to terminate an employment contract for a definite, indefinite and trial period. Either party may terminate the employment contract with notice. On the other hand, the termination of the employment contract takes place upon the lapse of the notice period (Art. 32 of the Labor Code).

However, there are situations when the employer or employee want to continue employment, despite the submitted declaration of will, which is the termination of the employment contract. It should be noted that the Labor Code does not provide for any provisions regulating the withdrawal of a notice of employment. However, the parties to the contract, wishing to withdraw the termination of the employment contract, will be able, pursuant to Art. 300 kp refer to the provisions of the Civil Code (kc) concerning declarations of will. It should be recalled that pursuant to Art. 300 of the Labor Code, in matters not regulated by the provisions of the labor law, the provisions of the Civil Code shall apply accordingly to the employment relationship, provided that they do not conflict with the principles of labor law.

How can the termination of an employment contract be withdrawn?

It is worth recalling that the termination of an employment contract is a declaration of intent of the employer or employee, the consequence of which is the termination of the employment relationship in accordance with the expiry of the notice period or with the termination of the employment contract. Pursuant to Art. 61 of the Civil Code, a declaration of will, which is to be submitted to another person, is submitted at the moment when it was reached in such a way that she could become acquainted with its content. The revocation of such a declaration is effective if it occurred simultaneously with this declaration or earlier.

The statement on the withdrawal of the notice should reach the employee even before becoming familiar with the termination of the employment contract or simultaneously with it.

It is worth recalling that according to the judgment of the Supreme Court (Supreme Court) of January 6, 1980 (file reference number I PRN 109/80) the employment contract is terminated by submitting a written statement on the termination of this contract. Such a declaration should be considered as made at the moment when the addressee came to his knowledge in such a way that he could become acquainted with its content. In view of the above, it should be emphasized that until the employee becomes familiar with the content of the termination of the employment contract, the employer may effectively withdraw the above-mentioned statement.

The declaration on the withdrawal of the notice of termination of the employment contract should be addressed to the appropriate addressee. Sending the dismissal to the trade union organization or company branch in which the employee works is ineffective until he has been able to read the statement.

According to the judgment of the Supreme Court of 7 March 2006 (file reference number I PK 128/05) the employee is the addressee of the employer's declaration of intent to withdraw the notice. Submitting such a declaration to another person, even if it was a trade union representative representing the employee, is ineffective as long as the declaration does not reach the employee in a way that allows the employee to become acquainted with its content.

Example 1.

The employer decided to terminate the employment contract with the employee and sent a notice of termination from the company's headquarters in Łódź to the chairman of the trade unions operating on the company's premises. The employee worked in Gdańsk, but was on a delegation at that time. During the ongoing employee delegation, the employer decided to withdraw the above statement. As a matter of urgency, a declaration on the withdrawal of the employment contract termination notice was sent to the branch in Gdańsk. The employee did not have time to read the notice, so the statement on its withdrawal will be effective, and the employer will not need the employee's consent for this purpose.

The judgment of the Supreme Court of March 28, 2002 (file reference number I PKN 55/01)
An employee who has consented to the employer's withdrawal of the declaration of will to terminate the employment contract without notice is not entitled to remuneration for the period of unemployment (Art. 57 of the Labor Code), but the remuneration provided for in Art. 81 of the Labor Code

It should be recalled that pursuant to Art. 81 of the Labor Code, an employee for the time of non-performance of work, if he was ready to perform work, and suffered obstacles for reasons relating to the employer, is entitled to remuneration resulting from his personal grade, determined by the hourly or monthly rate, and if such a component of remuneration has not been separated in determining the remuneration conditions - 60% of the salary. In each case, however, the remuneration may not be lower than the minimum remuneration for work, determined on the basis of separate regulations. The remuneration referred to above is due to the employee for the time of downtime not attributable to him. If the downtime was caused by the employee's fault, the remuneration is not due.

When is the consent of the other party required to withdraw the notice?

In a situation where the statement on withdrawing the notice of termination of the employment contract reaches the employee after reading its content, then the employee's consent to the changed decision of the employer will be required. In order to withdraw such a termination of the employment contract, it will be important for the employee to submit a written consent. The employee should confirm their willingness to continue cooperation with the employer.

The withdrawal of the notice requires the consent of the other party. However, unilateral withdrawal of the notice by either party is possible, if the other party has reached the same time as the declaration of will to terminate it or earlier. Pursuant to the resolution of the Supreme Court of 23 October 1986 (file reference number III PZP 62/86), this also applies to a situation where the employee has appealed against the termination notice to the court (and the employer wants to withdraw the termination notice). For evidence purposes, the consent of the employee should be expressed in writing.

Example 2.

Ms Joanna Nowak, employed as a specialist for Eastern markets, was terminated with a 3-month notice due to important economic reasons on the part of the employer. Shortly after this event, it turned out that two employees from the sales department went on long-term sick leave, while one employee terminated the contract by mutual agreement. Out of the four key employees in the sales department, no specialist remained. In view of the above, the employer turned to Ms Joanna Nowak with an offer to withdraw the notice of termination of the employment contract and return to the company. Ms Joanna Nowak gave her consent in writing to be rehired in the sales department. Thus, the termination of the employment contract was withdrawn even before the end of the notice period.

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It should be noted that in a situation where the employee does not consent to the withdrawal of the employment contract notice at the end of the notice period, the employment contract is terminated. Also, the employer should not put pressure on an employee who does not want to agree to the withdrawal of the above declaration.

Example 3.

The employer decided to terminate the employee's employment contract due to difficulties in communicating with other employees. After a week, he decided to change his mind because he misjudged the situation between his subordinates. He asked the employee for consent to withdraw the termination notice, but he did not receive a positive decision. The employer blackmailed the employee, wanting to force her to consent to the withdrawal of the notice. The above behavior of the employer is unacceptable, the contract should terminate with the expiry of the notice period.

Does the employee also have the right to withdraw the termination of the employment contract?

It is worth mentioning a situation in which the employee will want to change his / her decision regarding the declaration of termination of the employment contract. If he manages to send the employer a declaration on the withdrawal of the dismissal before he reads the content of the dismissal, the declaration of withdrawal will be effective. On the other hand, in each case in which the declaration on the withdrawal of the notice of termination of the employment contract occurs during the notice period, after the employer has received the termination notice submitted by the employee, the withdrawal of the declaration will require the consent of the employer.

The employer is not obliged to consent to the withdrawal of the employee's declaration, in particular, if, for example, there have been significant organizational or financial changes in the company due to the employee leaving the workplace.

Example 4.

The employee terminated the employer's employment contract due to a conflict with the head of the department. During the period of notice, she found out that the manager no longer works in this position and decided to submit a declaration to the employer about the withdrawal of the termination of the employment contract. The employer did not agree to the return of the employee to work due to the organizational changes made and the resulting large financial outlays.

In conclusion, the employer should address the termination of the employment contract to the appropriate employee, who will have the opportunity to read its content. The declaration on the withdrawal of the notice will be effective if it reaches the employee before the employee is familiar with its content. The withdrawal of the notice of termination of the employment contract is also possible after giving the notice to the employee, however, the employee's consent will be required, e.g. in writing or otherwise implicitly. The employee and the employer are not obliged to consent to the withdrawal of the notice of termination submitted by the party. Then the employment contract is terminated in accordance with the expiry date of the notice period.