Under Article 52 of the Labour Code (hereinafter: LC), an employer may terminate an employment contract without notice on the grounds of the employee’s fault (so-called disciplinary dismissal) in the event of, amongst other things, a gross violation by that employee of fundamental employment obligations.
Importantly, such termination cannot take place more than one month after the employer becomes aware of the circumstances justifying the termination of the employment contract. Failure to meet this deadline will render the termination of the employment contract invalid.
When does a violation of duties become ‘gross’?
Polish legislation provides no guidance on what constitutes a gross violation of an employee’s duties. However, guidance on this matter can be found in case law. Thus, according to the Supreme Court judgement of 22 March 2016, case no. I PK 94/15, an act qualifying as a gross violation of an employee’s duties must satisfy all three of the following conditions:
- the unlawfulness of the employee’s conduct, i.e. a violation of the fundamental duties arising from the Labour Code and the employment contract;
- a breach of, or threat to, the employer’s interests;
- culpability encompassing both intent and gross negligence.
Intentional fault vs. gross negligence – key differences
The opinion that gross violations of fundamental employment obligations include intentional fault and gross negligence (a form of non-intentional fault), results from the established case law of the Supreme Court (including the judgment of 11 September 2001, case no. I PKN 634/00).
It is accepted that intent exists where a person committing a gross violation of fundamental employment obligations does so knowingly, i.e. intends through their conduct to bring about a specific consequence or accepts that such a consequence may result. In the case of employees’ duties, therefore, intent will also be present where an employee anticipates that their conduct may violate applicable regulations but assumes they will avoid doing so, or fails to foresee such a possibility even though they ought to have or could have foreseen it.
Gross negligence, on the other hand, refers to a situation in which an employee fails to observe the basic principles of proper conduct in a given situation; that is, the employee has no intention of committing a specific act – yet commits it as a result of failing to exercise the care required in the circumstances, even though they could have foreseen the possibility of committing such an act. In practice, such behaviour is reflected, amongst other things, in the employee’s disregard for the consequences of their actions, even though both the nature of their duties and the position they hold would require them to exercise particular caution in their actions.
An employee’s fundamental duties – material scope
As set out in Article 100 of the Labour Code, an employee is obliged to perform its work conscientiously and diligently, and to comply with its superiors’ instructions relating to work, provided that these do not conflict with the law or the employment contract. The legislator has set out in the Labour Code (Articles 100 and 211) a list of fundamental employee obligations, which include, in particular, the requirement to:
- adhere to the working hours established at the workplace,
- comply with the work regulations and the rules of conduct established at the workplace,
- to comply with health and safety at work regulations and rules, as well as fire safety regulations,
- to look after the interests of the workplace, protect its property, and keep confidential any information whose disclosure could expose the employer to harm,
- to observe the rules of social co-existence within the workplace,
- to carry out work in accordance with health and safety regulations and rules, and to comply with instructions and guidance issued by superiors in this regard,
- to use collective protective measures, as well as the personal protective equipment, work clothing and footwear provided, in accordance with their intended purpose,
- to take part in health and safety training and briefings and to sit the required assessment tests,
- to undergo initial, periodic and follow-up medical examinations, as well as any other recommended medical examinations.
Importantly, the phrase ‘in particular’ used in the Labour Code provisions means that this is not an exclusive list.
Consequently, other sources governing fundamental employee obligations also include, amongst others, the provisions of employment contracts or other documents establishing the employment relationship.
Reasons recognised by case law as valid grounds for disciplinary dismissal – examples.
Case law recognises the following, in particular, as gross violations of an employee’s duties justifying the termination of an employment contract without notice, through the employee’s own fault:
- an unlawful and deliberate refusal to carry out an instruction, jeopardising the employer’s vital interests (case no. I PKN 211/97),
- performing other work during working hours (case no. I PKN 129/97),
- an employee’s breach of the duty to remain sober whilst at work (case no. I PKN 344/99),
- an employee’s use of a work telephone for private purposes, exposing the employer to significant loss (case no. I PKN 93/97),
- unauthorised withdrawal of undue advances against future wages by an employee responsible for the employer’s finances (case no. I PKN 675/99),
- breach of health and safety at work rules by an employee responsible for safe working conditions (case no. I PRN 62/76),
- conduct by an employee in a managerial position consisting of insulting colleagues (case no. I PK 290/2004),
- misappropriation of the employer’s property (case no. I PKN 361/99),
- the use of physical violence against a colleague (case no. I PRN 27/87).
Summary
The essence of disciplinary dismissal is to enable the employer to terminate an employment contract with an employee with immediate effect, without observing a notice period, in each case where the employee is at fault. This is an exceptional measure, applied only in situations where continued employment is impossible due to a gross violation by the employee of its fundamental obligations.