First of all, it is necessary to explain what it is termination of the employment contract. This is an important issue that will distinguish the termination of an employment contract as a result of the termination of the contract by the employee or the employer from the termination of the employment contract by agreement of the parties.
Termination of the employment contract. What is?
Termination of the employment contract is a declaration of will which results in the termination of the employment contract. This is a unilateral legal action, which means that the consent of the other party is not required to be effective (termination of the employment relationship), but only to inform it. One of the parties to the employment contract submits such a document to the other and the other party to the contract is forced to accept it (although it may later appeal to the court).
Institution termination of the employment contract is regulated in Art. 30 – 411 Labor Code. Termination of the employment contract upon notice, it may be made by both the employee and the employer, or by agreement of the parties. It is important that the employee may submit a declaration of will to terminate the employment contract with notice at any time, even during justified absence, e.g. sick leave, maternity leave, parental leave. Likewise, at any time, the parties may voluntarily sign an agreement terminating the employment contract - often called incorrectly termination of the employment contract by mutual consent of the parties.
To sum up - terminating an employment contract is a unilateral act, it can be done without the consent of the other party. The parties' agreement is a bilateral, voluntary "employment termination agreement".
The employer's right to (non-disciplinary) termination of an employment contract is subject to numerous limitations, which include, for example, the prohibition of terminating the employment contract during the employee's justified absence from work, the prohibition of terminating the employment contract of an employee who is not more than 4 years away from reaching the age of pension, or a prohibition on terminating the employment contract of a mother returning from maternity leave who has submitted an application for a reduction in working hours (up to 12 months of protection).
When making a unilateral act of terminating an employment contract, both parties are obliged to keep it in writing and to maintain an appropriate notice period. Period termination of the employment contract depends on the period of employment with a given employer:
- if the employee has been employed for less than 6 months, the notice period is 2 weeks;
- if the employee has been employed for at least six months, the notice period is 1 month;
- if the employee has been employed for at least 3 years, the notice period is 3 months.
In case of termination of the employment contract concluded for a trial period, the notice period is:
- 3 days if the trial period does not exceed 2 weeks;
- 1 week if the trial period is longer than 2 weeks;
- 2 weeks if the trial period is 3 months.
How to correctly calculate the notice period for an employment contract?
The method of calculating the notice period is specified in Art. 30 § 21 labor code. Pursuant to the above-mentioned provision, the notice period of an employment contract covering a week or a month or multiple thereof ends on Saturday or on the last day of the month, respectively. This issue, of course, requires a broader explanation, because calculating the notice period often causes difficulties for both employees and employers.
The obligation to correctly calculate the notice period rests particularly with the employer. This is supported by the fact that termination of employment imposes on the employer such obligations as reporting deregistration from ZUS insurance within 7 days from the date of termination of the employment relationship and immediately issuing an employment certificate. This means that this document should be issued on the day of termination or expiry of the employment contract.
If the employer, for objective reasons, is unable to issue an employment certificate to the employee on the day of termination or expiry of the employment contract, he may do so within 7 days of the termination or expiration of the employment relationship. If an incorrect notice period is used, the employee is entitled to a claim for remuneration for work.
Calculation of the 2-week notice period for an employment contract
Example: The employer handed it to the employee termination of the employment contract on October 6, 2020. The notice period will expire on October 24, 2020, because the 2-week notice period always ends on Saturday, after a full 2 weeks from the date of submitting the declaration of termination of the employment contract.
Calculation of the monthly notice period for an employment contract
Example: On November 2, 2020, the employer handed it to the employee termination of the employment contract. The notice period will expire on December 31, 2020. The notice period will not change if the notice of termination of the employment contract is given on November 1, 2020, because the contract is terminated after a full month, therefore in this situation the notice period will also expire on December 31, 2020.
Calculation of the 3-month notice period for an employment contract
Example: The employer served the employee with a notice of termination of the employment contract on January 30, 2020. The notice period will start on February 1, 2020 and end on April 30, 2020.
What if, during the 2-week notice period, the employee's length of service reaches 6 months and entitles him to a one-month notice period of the employment contract?
Example: The employee has been employed in a given company since January 1, 2020. On June 18, 2020, the employer provides the employee with a declaration of termination of the employment contract. On the day of serving the notice of termination of the employment contract, the employee's length of service is less than 6 months, which indicates the application of a 2-week notice period.
However, during the 2-week notice period, which would expire on July 4, 2020, the employee's seniority will be 6 months, which will entitle him to a one-month notice period. In such a case, the employer must apply a one-month notice period, because the length of service also includes the notice period of the employment contract.
Calculation of the 3-day notice period for an employment contract
Example: The employer gives the employee notice of termination of the contract on Friday, November 6, 2020. The 3-day notice period will expire on Tuesday, November 10, 2020, because we only count working days, and Sundays and holidays should be excluded.
Calculation of the weekly notice period for an employment contract
Example: The employer gives notice of termination of the employment contract on May 1, 2020. The notice period will expire on Saturday, May 9, 2020. The weekly notice period is counted from the following Sunday and always lasts until Saturday.
The above examples should be applied analogously when an employee submits a declaration of termination of an employment contract.
Content of the declaration of termination of the employment contract
Due to the different obligations and restrictions imposed by the legislator, the structure of the letter intended to terminate the employment relationship by the employer and the employee will be slightly different.
Termination of the employment contract by the employee
Declaration of will of the employee o termination of the employment contract must contain elements such as: place and date, employee's data, employer's data, declaration of termination of the employment contract with the statutory notice period, signature of the employee and signature of the employer, i.e. the party accepting the declaration of termination of the employment contract.
It should be noted that in a standard situation, the employee does not have to provide a reason for terminating an employment contract, even one concluded for an indefinite period. He is obliged to do so only if he submits a declaration of termination of the employment contract without notice.
Termination of the employment contract by the employer
The structure of the declaration of will termination of the employment contract by the employer is a bit more complicated.
Its basic elements include: place and date, employer's data, employee's data, declaration of termination of the employment contract, specification of the length of the notice period and its expiry date, information on the employee's right to appeal to the labor court, signature of the employer or the person representing the employer and the signature of the employee, i.e. the party accepting the declaration on termination of the employment contract.
Termination of an employment contract for an indefinite period
In the event of termination of an employment contract for an indefinite period, the employer is obliged to indicate the reason justifying its termination. The provisions of the Labor Code do not contain any guidance on formulating this justification. As the case law indicates, the obligation to provide the reason that is the basis for the decision to terminate employment consists in describing these circumstances in such a way that they do not raise doubts as to the accusation made against the employee.
The reason given by the employer must be true, specific and sufficiently understandable to the employee. The assessment of the validity of terminating an employment contract should be considered individually, depending on the circumstances.
As a rule, in order to avoid the accusation of lack of justification, the employer describes in great detail all events constituting a breach of duties by the employee. However, according to the jurisprudence of the Supreme Court, the justification for terminating an employment contract does not have to be extensive and detailed, the most important thing is that it takes into account the employee's interest and is understandable to him. The reasons given for termination do not have to be significant or cause significant damage to the employer.
It should be remembered that proper justification of the reason for terminating the employment relationship is the most important and most difficult element of the declaration of termination of the employment contract - when it is made by the employer.
Termination of an employment contract for an indefinite period without giving a reason
Termination of an employment contract for an indefinite period without giving a reason or without specifying it, constitutes a violation of the law. Providing an apparent, false reason is tantamount to failing to provide a reason justifying the termination of the employment contract.
An example may be a situation in which the employer, in justifying the termination of an employment contract, used the general phrase "failure to comply with occupational health and safety regulations", which is clearly insufficient. In such a case, the employer should describe what specific occupational health and safety regulations the employee violated, and should also indicate the date and circumstances of these violations.
One of the most frequently cited reasons for terminating an employment contract is loss of trust in the employee. According to the jurisprudence of the Supreme Court, loss of trust should be based on objective and rational premises and should not constitute arbitrary assessments and subjective prejudices. It is not enough to provide information about the loss of trust in the employee in the justification.
The employer must indicate the real and specific reasons that led to the loss of trust. Such reasons include: long-term and frequent absences of the employee, unintentional violation of important duties, inaccuracy and lack of reliability in the performance of duties, and improper performance of duties. According to case law, loss of trust in an employee may constitute a justification for terminating an employment contract, especially in the case of an employee holding a managerial position.
His behavior must be inappropriate and there must not be a breach of employee duties. This means that when formulating a justification for terminating an employment contract due to loss of trust, the position held by the employee should also be taken into account.
The employer is not able to correct the termination of the employment contract, therefore he should carefully prepare to submit to the employee a declaration of termination of the employment contract, and any doubts should be consulted with the employer. legal advisor specializing in labor law.
Optional elements of a declaration of termination of an employment contract
It is permissible (and even quite common) to include information about the employee's dismissal from work in the declaration of termination of an employment contract. The period of this exemption should be indicated. The employer is not obliged to justify the decision to dismiss an employee from work.
Another optional element is information about providing the employee pursuant to Art. 167 of the Labor Code, annual leave during the notice period. Pursuant to this provision, the employee is obliged to use his/her holiday leave if the employer grants it to him/her during this period.
This applies to both overdue annual leave and current leave. An important issue is that the provisions of the Labor Code allow an employee to be granted annual leave during the notice period of the employment contract. In this case, it is worth using an example:
If the employer gives the employee a notice of termination of the employment contract on September 18, 2020, with a 3-month notice period, the notice period will begin on October 1, 2020. This means that the employer may grant annual leave pursuant to Art. 1671Labor Code in the period from October 1, 2020 to December 31, 2020.
Regardless of the type of employment contract, the employer is obliged to include in the declaration of termination of the employment contract information about the employee's right to appeal to the labor court. This instruction should include: the deadline for the employee to submit an appeal, the court to which the appeal should be filed, and the location of the court. The employer does not have to provide the exact address of the court's seat, but most often employers include it in the content of the instruction.
Lack of instruction constitutes a violation of the provisions of the Labor Code, but does not entitle the employee to pursue claims such as declaring the notice of termination ineffective, reinstatement to work and compensation. It may only be the basis for restoring the deadline for filing an appeal to the labor court.
Indication of the legal basis by the employer in the declaration of termination of the employment contract
The law does not oblige the employer to indicate the legal basis for terminating the employment relationship in the declaration of termination of the employment contract. Failure to indicate the legal basis for terminating the employment relationship or its incorrect classification does not invalidate the declaration of termination of the employment contract. In such a case, the employee is also not entitled to compensation. This does not change the fact that specifying the legal basis and procedure for termination is at least a welcome practice.
Written form of termination of an employment contract
As already mentioned at the beginning, a declaration of termination of an employment contract - regardless of whether it is prepared by the employee or the employer - should be made in writing. If the employer does not keep the notice in writing, such a declaration of termination of the employment contract will be effective but defective. The employee may appeal to court against decisions made in this way termination of the employment contract. In turn, failure by an employee to comply with the written form required by law only causes evidentiary difficulties.
To maintain the written form, a handwritten signature of the authorized person is required on the document containing the content of the declaration of termination of the employment contract.
Termination of an employment contract via e-mail
Submitting a declaration of termination of an employment contract to an employee via e-mail is currently permissible. However, in order to maintain the written form required by law, this declaration must be signed with a secure electronic signature. Such termination of the employment relationship meets all legal requirements, because a secure electronic signature is equivalent to a handwritten signature. A declaration delivered to an employee via email without a secure electronic signature will be effective but defective. The employee will be able to request that the court recognize such termination as ineffective.
Sending by an employee a notice of termination of an employment contract with a secure electronic signature via e-mail is, of course, also permissible and this issue does not raise any doubts. It should be noted that this is actually an instructive provision for the employee - because, according to the vast majority of lawyers, the lack of a secure electronic signature in an e-mail containing the employee's termination of employment does not cause any negative consequences for the employee, and such a declaration is effective.
Termination of the employment contract in the form of e-mail messages is used very rarely. The use of such a form raises many doubts, primarily regarding the possibility of the other party getting acquainted with the declaration. On the other hand, due to the ongoing pandemic, it can be expected that this phenomenon will become more and more frequent.
Summary
Correctly drafting the notice of termination of an employment contract will allow you to avoid many negative consequences, especially on the employer's side. It is important to prepare precisely for submitting a declaration of termination of an employment contract and, above all, to become familiar with the current labor law provisions. In complicated cases, it is worth asking for an opinion legal advisor specializing in the field of labor law. The cost of such advice in our office is usually PLN 350 - in accordance with price list of the Law Firm's servicesand.
Particular attention should be paid when calculating the notice period and (the employer) formulating the reason justifying the termination of the employment contract. This last issue is one of the most important elements of the notice of termination, and courts very often hear cases for declaring the notice of termination ineffective.
Below we provide templates of notices of termination of employment contracts - however, these are general templates, the Law Firm reserves that their correct completion usually requires knowledge and experience, therefore it is not responsible for their use without the use of services in the field of labor law provided professionally by lawyers Law Firm specializing in labor law.
Template of notice of termination of an employment contract by an employee / Sample notice of termination of an employment contract by the employer