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In this article we will:

• discuss what claims an employee is entitled to as a result of a defective termination of an employment contract;
• describe how their amount is determined based on the case law of the Supreme Court;
• address issues related to evidentiary proceedings, and in particular explain what may help in pursuing one’s claims.

1. What Claims Am I Entitled to Following an Unlawful Dismissal?

Where the termination of an employment contract (whether for a fixed term or an indefinite term) is unjustified or has been effected in breach of the provisions governing termination of employment contracts, the employee has a choice between two claims:

• a claim for a court declaration that the termination is ineffective (and if the contract has already been terminated – for reinstatement of the employee to work on previous terms and conditions);
• or, a claim for payment of compensation.

However, even if the court finds that the termination was defective, it does not always have to grant reinstatement if it determines that reinstatement would be inadvisable (for example, where little time remains until the expiry of a fixed-term contract, or where a conflict exists between the employee and the employer that excludes the possibility of further relations based on trust). In such a case, the court is obliged to award compensation to the employee.

2. What About the Period of Remaining Without Work in the Case of Reinstatement?

Reinstatement to work has legal effects ex nunc (i.e. prospectively; from the moment the court issues its judgment, an employment relationship arises that is the same as the one that existed before the dismissal).

An employee who has been reinstated to work and has resumed work is entitled to remuneration for the period of remaining without work (in a limited amount, as explained below).

The Supreme Court has ruled that the period of remaining without work means the period during which the employee did not perform work for the employer who unlawfully terminated the employment contract.

Importantly, the Supreme Court has indicated that income obtained by the employee under another employment relationship does not limit the right to remuneration due as a result of reinstatement. This means that even if the employee takes up employment with another employer, they may still claim payment of outstanding remuneration.

Payment of remuneration for the period of remaining without work is possible only if the reinstated employee submits a claim for its award.

The period for which remuneration is awarded is included in the employee’s length of service.

3. Amount of Remuneration for the Period of Remaining Without Work

Remuneration is payable in an amount not exceeding the equivalent of 2 months’ pay.

If the notice period was 3 months – not more than 1 month’s pay.

If the employment contract was terminated with:

• an employee of pre-retirement age; or
• a female employee during pregnancy,
• during maternity leave or from the date on which the employee submitted an application for maternity leave,

until the end of that leave:

• remuneration is payable for the entire period of remaining without work.

The above also applies where termination of the employment contract is restricted by another specific statutory provision.

4. What Amount of Compensation May I Receive for an Unjustified or Unlawful Termination of an Employment Contract?

Employment Contract for an Indefinite Period

• The amount of compensation is determined by the court.
• The court is bound by statutory “limits” – it may award compensation in an amount equal to remuneration for a period from 2 weeks to 3 months, but not less than remuneration for the notice period.
• When addressing the issue of the amount of compensation, the Supreme Court demonstrates inconsistency:

on the one hand, the Supreme Court rightly points out that compensation for defective termination is not compensatory in nature (its essence is not to remedy actual damage, and proving damage and its amount is not a prerequisite for awarding compensation);

on the other hand, the Supreme Court recognizes the amount of damage as the basic criterion for determining the amount of such compensation (which should be assessed in relation to the loss of expected earnings as a result of the defective termination of the employment contract).

Employment Contract for a Fixed Term

• If: the term of the contract expired before the labour court issued its judgment; or
• reinstatement would be inadvisable due to the short period remaining until the expiry of the contract,
• compensation is payable in an amount equal to remuneration for the period until which the contract was to last, but not exceeding 3 months’ pay.
• This means that the court is obliged to award a specific amount in a given factual situation (there is no judicial discretion in the form of statutory “ranges”).

5. Proceedings in Labour Law and Social Security Cases

Such proceedings constitute a separate procedure within civil proceedings.

It should be remembered that, pursuant to Article 96(1)(4) of the Act on Court Fees in Civil Cases, an employee bringing an action (an appeal against termination) before the labour court is not required to pay court fees.

The provisions limiting the admissibility of evidence from witnesses and from examination of the parties do not apply (in particular Articles 246, 247 and 304 of the Code of Civil Procedure and Article 74 § 1 of the Civil Code).

Taking evidence from the examination of the parties is not mandatory; however, the court is obliged to do so where there is a lack of other evidence in the case.

The exclusion of the above limitations does not apply in labour law cases in which the employee is the defendant (the liberalization of evidentiary proceedings in relation to the employee implements the principle of reducing the imbalance of power between the parties to the employment relationship).

6. How to Prepare for an Unjustified Dismissal?

Remember to document your claims!

This is important in order to strengthen your position—the party asserting a claim must prove that it is justified.

Although documentary evidence is not required, its probative value is generally higher than, for example, witness testimony.

To prove that the employer terminated your employment contract in a defective manner, everything may be relevant.

Evidence may include, for example:

• e-mail correspondence with co-workers or persons in managerial positions within your company;
• SMS messages;
• witness testimony (co-workers or former co-workers);
• messages sent via internal communicators such as Slack or Microsoft Teams;
• photographs (e.g. photos of work schedules physically posted at the workplace).

Some of the above means of evidence may seem insignificant; however, a professional—such as a legal adviser or attorney—after reviewing them, selecting the relevant material and assigning it appropriate legal significance, may prepare an appeal against termination that results in obtaining compensation from a former employer.