Changes of labour law
New regulations regarding business trips
On 1 March 2013, new regulations on the compensation due to employee on account of business travel entered into force, replacing two separate regulations which had applied so far to domestic and abroad business trips, respectively. They not only apply to employees of public sector entities, but also to those working for private sector entities, if those matters are not regulated in collective labour agreements or remuneration regulations.
The compensation due to employees on account of business travel specified in a company’s regulations cannot be lower than stipulated in the new regulations. According to new rules, the amount of allowance is increased from PLN 23 to PLN 30 per day. Moreover, the amount of allowance for the majority of foreign countries was also changed. It still varies depending on the target country; however, the employer can determine a selection of target countries and thus adjust the allowance amount to the needs of the employee.
The regulation also clarifies how free meals free of charge food should be deducted from the daily allowance. The previous regulations did not govern this issue.
The regulations also provide for some changes in the refunding of accommodation costs. They should be refunded in the maximum amount of PLN 600 for one day, however the employer can agree, under justified circumstances, to cover those costs in higher amount.
- regulation on amounts due on account of business travel to employee working in state or local government budgetary units dated 29 January 2013 (Journal of Laws dated 05.02.2013)
Employer’s duty to acquaint employee with industrial safety regulations
Article 211 of the Labour Code obliges the employee to observe industrial safety regulations and imposes an obligation to know these regulations, as well as an obligation to take part in training and instruction regarding these issues and to pass the relevant exams.
Whereas, according to Article 207 § 1 and 2 of the Labour Code, the employer is liable for industrial safety in the company. The employer is obliged to protect the lives and health and of employees by ensuring safe and hygienic working conditions.
According to a judgment issued by the Appeals Court in Łódź dated 17 January 2013, the employee’s duty to observe industrial safety regulations arises after adequate knowledge in this sphere has been passed on from the employer to the employee. Therefore, employer neglecting their duty to duly inform employees about binding industrial safety regulations will have to suffer the consequences.
- judgment of Appeals Court in Łódź dated 17 January 2013 (I ACa 1015/12)
Use of promissory notes as coverage of employer’s claims in employment relationships
Because of the doubts concerning the use of promissory notes as coverage of an employer’s claims towards an employee arising from an employment relationship, the Ministry of Labour and Social Policy (MPiPS) has confirmed its earlier viewpoint that such a practice is illegal. In the opinion of MPiPS, the Labour Code provides for a number of regulations concerning the rules governing employee’s liability towards employer and there is no need to use other statutory provisions in this scope. This viewpoint concerns mainly damages caused by the non-performance or misperformance of an employee’s obligations, a field that is governed by Labour Code.
Please note that the Polish Supreme Court also maintains that it is not permissable to use promissory notes as coverage of an employer’s claims towards an employee. In a judgment dated 26 January 2011, the Supreme Court stated that „Regulations and principles of labour law, in particular those from section V of the Labour Code, exclude the possibility of issuing a warranty promissory note as a coverage of claims to compensate damages cause by an employee to employer’s property, thus making such a promissory note invalid by virtue of law. Therefore, employer cannot satisfy the claim on the basis of the promissory note.”
- viewpoint of MPiPS dated 3 April 2013
Employee’s consent for deduction from remuneration
According to Labour Code, an employer can only deduct from an employee’s remuneration those amounts that are enumerated in those regulations, or amounts for deduction for which the employee has given his/her written consent. In previous judgments and legal doctrine’s views, the employee’s consent had to be prior to the deduction.
The Supreme Court judgment dated 2 August 2012 has changed the attitude to voluntary deduction. In this judgment, the Supreme Court stated that an employee can give his/her consent for a deduction also after the deduction has been made by the employer, if the employee is aware of the associated decrease in his/her remuneration and acknowledges the debt towards the employer.
- judgment of Supreme Court dated 2 August 2012 (I BP 2/12)
Termination of non-compete agreement
In the grounds for its judgment dated 22 June 2012, the Supreme Court stated that an earlier termination of a non-compete agreement regarding competition after termination of the employment relationship by means of a unilateral termination by the employer is possible if the parties envisaged this way of termination for the agreement.
Moreover, the Supreme Court stated that it is sufficient to give a reason for such termination in general terms, such as termination of reasons for the non-compete agreement. The assessment of the reasons of termination is made by the employer and must not be verified by court.
- judgment of Supreme Court dated 22 June 2012 (I PK 237/11)
Effective period of an agreement concluded for a definite period of time
The Labour Code does not provide for a maximum period of time for which an agreement for a definite period of time may be concluded. In previous judgments, the Supreme Court stated that long-term agreements can be concluded in situations justified by the employer’s needs, e.g. in order to perform a task lasting for a given period of time.
In a judgment dated 5 October 2012, the Supreme Court stated that the conclusion of an agreement with a chief accountant for a definite period of 5 years with the possibility of an earlier termination is not an evasion of law. The Supreme Court indicated that in economic relations, 5-years term agreements are often concluded with management. Customarily, such agreements provide for the possibility of earlier termination. No reasons for termination have to be given, as the Labour Code does not require giving reasons for termination of agreements concluded for a definite period of time.
This judgment is an important guideline regarding agreements with management personnel concluded for a definite period of time.
- judgment dated 5 October 2012 (I PK 79/12)
Dismissed management board member’s claim of reinstatement into work
According to the resolution of Supreme Court seven judges dated 16 May 2012, a dismissed member of the management board whose employment agreement was terminated in breach of the law is entitled to claim reinstatement into work.
A previous judgment stated that reinstatement into work is groundless, since the dismissed management board member will not be reinstated into his/her previous position (member of the management board) and indicated that the ex-management board member had a right to compensation.
In this resolution of 16 May 2012, the Supreme Court allows for the dismissed management board member’s claim of reinstatement into work, but reserves that it concerns exceptional situations (e.g. employees in the pre-retirement period). Moreover, in such situations, the employee would be reinstated into work, but not to a position of a member of management board.
- resolution of seven judges of the Supreme Court dated 16 May 2012 (III PZP 3/12)