How to properly determine the length of the employment termination notice period?

Employers often wonder what the proper length of the employment termination notice period should be when handing the notice to an employee. This issue is, contrary to appearances, quite significant, especially when the termination occurs just before the 6-month or 3-year employment period of a given employee with the employer expires.

According to the Article 36 of the Labor Code, the notice period for both indefinite and fixed-term employment contracts depends on the length of the employee’s employment with the employer and is as follows:

• 2 weeks, if the employee has been employed for less than 6 months;
• 1 month, if the employee has been employed for at least 6 months;
• 3 months, if the employee has been employed for at least 3 years.

An employer intending to terminate the contract must accurately calculate the employee’s length of service with the company. It is important to remember that the notice period is added to the total length of employment, which determines the length of the notice period.

Interpretative doubts have been clarified in the case law of the Supreme Court. In a resolution dated April 4, 1974, case no. I PZP 33/78, it was stated that the notice period for an indefinite-term contract is included in the total length of employment when calculating the notice period.

Moreover, in a judgment dated May 11, 1999, case no. I PKN 34/99, the Supreme Court refined this rule, stating that the length of the notice period is determined by the length of employment with a given employer, calculated from the date the employment contract was signed to the date it is terminated with the expiration of the notice period.

Therefore, if an employer intends to terminate an employment contract in November with an employee whose 3-year employment period will expire in December, the employer must apply a 3-month notice period, even if the employee has not yet completed the 3-year period with the employer at the time the termination notice is handed over. This is because the notice period is added to the total length of employment, making the period 3 months instead of 1 month.