Group layoffs for reasons not related to employees
Although the current condition of the labor market is favorable for employees in Poland, and there is often talk of the employee's labor market, there are situations when group layoffs take place. This is a specific method of terminating an employment relationship, which is regulated by the Act of March 13, 2003 on special rules for terminating employment relationships with employees for reasons not related to employees. Know the rights of the employee in these circumstances and the obligations incumbent on the employer in this case.
Who is affected by the collective redundancies?
The provisions of the aforementioned act indicate that group layoffs take place when the employer employs at least 20 employees and terminates the employment relationship for reasons not related to the employees, by termination of the employment contract or by agreement of the parties at the employer's initiative, if within 30 days the dismissal concerns:
10 employees, if the employer employs fewer than 100 employees,
10% of employees when the employer employs at least 100 but less than 300 employees,
30 employees, when the employer employs at least 300 people or more.
As is clear from point 2 of Art. 1 of the Act, collective redundancies will also take place when the employer employs fewer than 100 employees and when at least 5 employees terminate the employment relationship on the initiative of the employer by agreement of the parties. The employment status is determined by the number of employees at the time the employment contract is terminated or the employer submits a proposal to terminate the employment contract by mutual agreement.
Group layoffs are made by termination of the contract by the employer and termination of the contract at the initiative of the employer by mutual agreement of the parties.
The rules on collective redundancies do not apply to temporary agency workers who are employed by temporary employment agencies and by appointment, such as, inter alia, prison and police officers, teachers or civil servants.
Group layoffs and the obligation to consult with trade unions
If there are trade unions in the workplace, it is the employer's responsibility to consult before introducing the collective redundancy procedure. Consultation should cover the possibility of avoiding or reducing the size of a collective dismissal and the attendant employee-related matters, including the possibility of retraining or vocational training or other employment for the dismissed workers. The trade union organizations should be notified in writing, in which the employer should inform about:
reasons for collective redundancies,
the number of employees and the professional groups to which they belong,
professional groups of employees covered by collective redundancies,
the period in which the collective redundancy is to take place,
the order of dismissal of employees,
proposals of cash benefits for dismissed employees.
The employer is obliged to provide the same information in writing to the competent poviat labor office, except for information on cash benefits.
The employer must notify the poviat labor office about group layoffs, their type, reason, the number of employed and dismissed employees, the period in which they are to be dismissed, as well as the professional groups to which the dismissed workers belong. A copy of this notice is provided by the employer to the trade unions.
Within 20 days of notifying the trade unions about the intention to carry out collective redundancies, the employer and the unions should conclude an agreement on the rules of conduct. In workplaces where trade unions do not operate, the rules for carrying out collective redundancies are determined by the employer in the work regulations after consulting with the employees' representatives. Only after 30 days from the conclusion of the agreement with the trade unions or employees' representatives, the employer may terminate the employment contract with the employees as part of a collective dismissal.
Group layoffs and cash benefits due to employees
An employee whose employer terminates an employment contract as part of a collective dismissal is entitled to a severance pay in the amount of:
a one-month salary, if the employee has been employed by a given employer for less than 2 years,
two-month salary, if the employee has been employed by a given employer for 2 to 8 years,
three-month salary, if the employee has been employed by a given employer for over 8 years.
Severance pay is determined in accordance with the rules applicable to calculating the cash equivalent for annual leave, and its amount may not exceed the amount of 15 times the minimum wage applicable on the date of termination of employment. In 2019, it will be PLN 33,750.
Importantly, in the event of re-employing employees in the professional group to which the employees dismissed under the collective redundancy belonged, if the employee reports to the employer within one year of the dismissal of the intention to take up employment, the employer should re-employ such an employee within 15 months from the date of termination. employment relationship. Start a free 30-day trial period with no strings attached!
What should the employer consider when selecting employees for collective dismissal?
The employer does not have complete freedom and discretion in deciding which employees he would like to leave as part of a collective dismissal. As indicated by the Supreme Court in the judgment of 14 March 2013 (I PK 243/12): "the criteria for selecting employees to be dismissed should be objective and fair, and the employer who terminates for reasons relating to him should prove that he took all employees into account, which are related to the reasons forcing him to terminate the employment relationship ”.
It seems that he should take into account, first of all, the type of qualifications, education, employment history or length of service, however, as we read in another Supreme Court judgment of June 1, 2012 (II PK 258/11): "as a criterion for selecting employees to be made redundant it is possible to assess only their competences that are relevant from the point of view of the employer, disregarding other criteria as less important, such as the previous work history, seniority, professional experience, formal qualifications ”.
First of all, the employer must observe the principle of non-discrimination of employees. For example, it is unacceptable to dismiss a larger number of women or older workers. In the event of an employee appeal to the labor court, it will be up to the employer to prove that he followed objective criteria when selecting employees for dismissal. The employer may choose, for example, the availability of an employee as a criterion for selecting persons to be dismissed, because, as the Supreme Court adopted in the judgment of 23 January 2001 (I PKN 191/00): "it does not violate the principles of social coexistence, the employer's acceptance of understood as the possibility of counting on the presence of an employee at work during the time allocated for it. The opposite of availability understood in this way are frequent absences of an employee due to poor health or children's health, as well as other cases of unjustified absences, which not only make it necessary to organize emergency replacements, but also prevent the expectation that the employee will be able to replace another employee if necessary. ".
Which employees are not affected by collective redundancies?
As part of a group dismissal, the employer may not dismiss employees covered by special protection, in particular, such as:
employees who are no more than 4 years away from reaching retirement age,
pregnant women, during maternity leave,
employees during leave on the terms of maternity leave, parental leave and paternity leave,
members of the board of the trade union,
social labor inspector
an employee called up for military service, substitute service, basic military service or military training.
Such protected employees may only be terminated by the employer with termination of the hitherto working or pay conditions.