Rozwiązanie umowy o pracę w pytaniach i odpowiedziach
W niektórych przypadkach stosunek pracy zostaje rozwiązany. Jak można rozwiązać umowę o pracę? Kiedy można wręczyć pracownikowi dyscyplinarkę? Czy umowa na czas określony może zostać rozwiązana?
When an employer terminates an employment contract, the key factors are the number of employees employed by the employer and the reason that forms the basis for terminating an employee.
What reduced working hours consist of
Of the numerous entitlements that the Labor Code grants to employee-parents, one is used very readily by employees; this is reduced working hours. This entitlement consists of the possibility for an employee who is entitled to parental leave (but who does not take such leave), to request a reduction in working hours to no less than ½ full time, in order to take personal care of the child. The Labor Code does not specify the minimum working hours by which an employee’s full-time position may be reduced. Therefore, theoretically, nothing prevents an employee from requesting a reduction in working hours to, for example, 39/40 FTE, and thus by only one hour per week. As long as such a request is not illusory and the purpose of the reduced working hours is indeed to facilitate the requesting employee’s personal child care, even a minimal reduction in working hours will be justified. Otherwise, it may constitute an abuse of the right by the employee, who in such a case will not benefit from protection.
Reduced working hours protect the employee from dismissal….
The employer is obliged to grant the request for a reduction in working hours, and the employee from the time of such request until the return to unreduced working hours (but no longer than for 12 months) enjoys the protection of permanence of employment. Thus, the employer may not terminate the employment contract of such an employee, except in the case of liquidation or bankruptcy of the employer or the occurrence of circumstances allowing termination without notice due to the fault of the employee. However, is every employee benefiting from reduced working hours protected to the same extent?
…But not always. And not everyone.
Well, no. When an employer terminates an employment contract, the key factors are the number of employees employed by the employer and the reason that forms the basis for terminating an employee.
An employer who employs at least 20 employees and the sole reason for termination of employment with an employee on reduced working hours may terminate the employment contract with the employee. If at least one of the above conditions is not met (so we are dealing with a “smaller” employer or the reason for termination is related to the employee – such as low productivity or indisposition), the employer cannot terminate the employment contract of an employee during the protective period resulting from the use of reduced working hours.
What is the reason for such significant differences in the rights available to employers with fewer than 20 employees and employers with at least 20 employees? Namely, from the application of different legal acts.
In the case of “large” employers, if the reason for the employer’s termination of the employment contract does not concern the employee, the Law of March 13, 2003 on special principles of termination of labor relations with employees for reasons not related to employees applies, regardless of whether the employer is making a group layoff or an individual layoff. This law excludes employment protection for employees benefiting from reduced working hours (Article 10(2) and Article 5(5) of the above law). This interpretation was confirmed by the Supreme Court in its resolution of February 15, 2006 (II PZP 13/05).
In the case of “small” employers, the above Act does not apply. Termination of an employment contract by an employer who employs fewer than 20 people will therefore be subject to the regime of the Labor Code. In such a case, a reduced-time employee will enjoy protection against termination in accordance with Article 1868 of the Labor Code.
In search of justice
Does the described solution proposed by the Polish legal system meet the criteria of equality before the law and the prohibition of discrimination? In my opinion, not necessarily. After all, no sufficiently rational justification can be found for differentiating the situation of an employer employing 20 people and an employer employing 19 people, if in both cases the reason for the termination of an employment contract by the employer is, for example, the liquidation of a job (and therefore a reason not related to the employee). The first employer will be entitled to terminate the employment contract of an employee benefiting from reduced working hours, while the second employer will not have this option for a year. Similarly, there will be inequality in the protection of employees – an employee of a “large” employer enjoying employment protection while working reduced hours will be able to be dismissed, while an employee of a “small” employer working lower hours will enjoy employment protection for a year.
Therefore, it can be hoped that the inequalities described in this article between the rights of employers and the protection of employees, which are based solely on the number of people employed, will soon be eliminated. After all, the continuation of the legal regulations in question in their current form does not constitute due and equal protection for all groups of entities employing and providing labor in the territory of Poland.
W niektórych przypadkach stosunek pracy zostaje rozwiązany. Jak można rozwiązać umowę o pracę? Kiedy można wręczyć pracownikowi dyscyplinarkę? Czy umowa na czas określony może zostać rozwiązana?
W znacznej większości przypadków przyczyna podjęcia decyzji o zakończeniu stosunku pracy nie będzie miała znaczenia przy zawieraniu porozumienia pracownika i pracodawcy.
