An employer may and should expect employee’s presence at work to enable proper performance of their duties. This criterion will not be treated as discriminatory pretext, and, in principle, may be used for selecting employees for dismissal. It should be noted, though, that unless there are grounds for terminating the employment contract, e.g., under Article 63 of the Labour Code, the employer should also be able to demonstrate that the absence of the employee had a negative impact on the organization of work in the workplace, therefore infringing on the employer’s interests. – Mariusz Maksis comments for Rzeczpospolita.
The situation on the labour market is much more serious than data on group layoffs show. Many companies are trying to bypass the procedure because it is overly formalised and requires taking a series of actions. Some employers prefer to spread the layoffs over time to stay below the statutory threshold for collective redundancies. It should be noted that staggered layoffs should be justified by objective business needs, such as the need to ensure a smooth implementation of the employment restructuration process. Otherwise, such actions may be considered as bypassing the regulations. – Karolina Schiffter comments for Dziennik Gazeta Prawna.
A draft amendment to the so-called Ukrainian Special Bill has been published on the website of the Government Legislation Center. Adoption of the new law is planned for the second quarter of 2024.
The key changes introduced by the draft amendment are:
extension of the automatic right of residence of Ukrainian citizens in Poland until September 30, 2025;
shortening from 14 to 7 calendar days the deadline for the employer to submit to the PUP a notification about the start of work of a Ukrainian citizen;
introducing for Ukrainian citizens who have UKR status (and had it as of March 4, 2024) the possibility of submitting special electronic applications for a temporary residence permit for a period of 3 years.
We have discussed the initial assumptions made available by the Ministry of the Interior and Administration before the draft was published here.
A draft sheds light on further details regarding special temporary residence permits introduced by the proposed amendment – most importantly:
submitting an application for this permit will only be possible electronically via the so-called case management module;
an application for a permit will be able to be submitted by any citizen of Ukraine who has UKR status and had it as of March 4, 2024, regardless of whether he works, runs a business, stays with a family member or has another purpose of staying in Poland;
the permit will authorize you to run a business and to perform work without the obligation to submit a notification to the PUP;
the permit holder will be obliged to notify the office of any change of place of residence in Poland within 15 days;
the permit will be subject to withdrawal if the foreigner leaves Poland for more than 6 months.
While on sick leave, employees are expected to focus on recovery, not activities that could delay, hinder or prevent it. This aligns with both the spirit and wording of social security regulations. Engaging in activities that extend sick leave is considered unfair and a misuse of the system. It also impacts the broader public interest, as these benefits are financed by public funds. However, when determining if an activity is inappropriate, courts must consider all the specific circumstances of each case. – Karolina Schiffter and Robert Stępień comment for Dziennik Gazeta Prawna.
A bill amending the Act on Assistance to Ukrainian Citizens dated 12 March 2022 proposes shortening the deadline for companies employing Ukrainians to notify about it a district labour office from 14 to 7 days. The Ministry of Interior and Administration claims the previous timeframe was misused, as revealed by inspections. However, the proposed change has employers concerned. The shortened deadline for submitting the notification is seen as tight, especially considering the potential consequences of non-compliance. Failing to submit the notification on time means the employment is considered illegal. This can result in fines up to PLN 30,000 for the first offence, and potentially losing the ability to obtain future work permits in repeat cases – Karolina Schiffter comments for Dziennik Gazeta Prawna.
The provisions on protection of parliament members do not fit today’s realities. In the previous political system, they aimed to guarantee continuous employment for former MPs. Currently this solution seems to unreasonably privilege the positions of former MPs and senators, thereby interfering with the employer’s right to freely shape employment. The employer’s rights regarding terminating employment or changing the terms of work and salary with such an employee are significantly restricted. The final decision in this matter rests with the Presidium of the Sejm or Senate. It is final. The regulations do not provide for the possibility of appealing to the labour court or any other entity. Thus, the employer bears the full economic burden of continuing the employment of a former MP. – Karolina Schiffter comments for Dziennik Gazeta Prawna.
There were doubts whether the extension would apply only to refugees, or also to other individuals who resided in Poland before the war on the basis of e.g. a residence permit. The decision to adopt a long-awaited solution was made. It will be appreciated both by the market, and by the officials who could receive thousands of applications for residence permits. Facilitations in obtaining residence permits for individuals conducting business activities will be maintained. – Karolina Schiffter comments for Dziennik Gazeta Prawna.
Despite numerous Supreme Court rulings on overtime work, it still poses many issues for employers. The correct determination of overtime work and its recording prove to be the most problematic. Regulations of overtime work state that it is permissible only with the employer’s knowledge and consent. An employee who is aware of the need for overtime work should obtain prior consent from the employer or – in exceptional cases – subsequent consent. The requirement to obtain the consent for working overtime means that the employee cannot independently and in a manner binding for the employer decide on the necessity of working overtime and demand additional benefits for it. Especially when during employment they did not inform the employer at all about the need to work overtime and their claims are based on working time statement based on first and last email sent on a given day (without proving work was really performed between these hours). – Sandra Szybak-Bizacka and Michalina Lewandowska-Alama comment for ius.focus.
Vacation form ZUS and changes to the health insurance contributions, protection of whistleblowers in the final stretch, and ideas to include employment based on civil-law contracts in the length of service – Sandra Szybak-Bizacka and Katarzyna Stępień discuss the most important news from March 2024 for Dziennik Gazeta Prawna.
Employers often opt for listing several or even more reasons behind the decision to terminate employment to avoid cases where the specified arguments turn out to be insufficient. This particularly applies to disciplinary dismissals, where the gravity of the breach often determines the justification for termination. In such cases, some courts consider even one confirmed reason for terminating the employment contract to be sufficient. An alternative view emphasizes the need to examine the proportionally justified or unjustified reasons. The first view seems to have a stronger justification. If one of the reasons is sufficient to terminate the employment contract, comparing it to others in terms of quality or quantity is unnecessary. After all, if the statement were limited to that reason, the matter would be resolved. – Patryk Kozieł comments for Rzeczpospolita.
