Article

Article 18 §3 of Labour Code; Article 94.9 of Labour Code; Article 30 §4 of Labour Code; Article 39 of Labour Code;

Description

When preparing for collective dismissals in Poland, employers are required to define selection criteria for choosing which employees will be dismissed. These criteria are: proposed by the employer, negotiated with employee representatives, finalised in either a collective agreement, or a dismissal regulation (if no agreement is reached).

Although the criteria for selecting employees for dismissal are not specified in any generally applicable provision of labour law, the process of identifying individuals whose employment is to be terminated, whether through individual or collective redundancies, must not be arbitrary or discretionary.

In addition an employer may not terminate an employment contract with an employee who will reach retirement age within 4 years, if that period allows the employee to acquire entitlement to retirement pension (article 39 of labour code).

Pursuant to Article 94.9, and 18 §3 of the Labour Code, employers are required to apply objective and fair criteria when assessing employees and their work performance, including in the context of dismissal decisions. Accordingly, the Supreme Court in its rulings suggest that the key criteria for selecting employees for dismissal should include: suitability for the role, qualifications and professional competencies, relevant experience, length of service and employment history, as well as availability to the employer.

This process is backed by the Supreme Court ruling of 3 August 2023 (III PSK 90/22), which confirmed that employers must specify individual reasons for selecting particular employees, especially when multiple employees hold similar roles.

The decision of the Supreme Court is concerning a cassation complaint filed by the defendant company against an employee in a case regarding compensation for unjustified termination of an employment contract (the interpretation of Art. 30 § 4 k.p. - requirement to state reasons for termination, and Art. 45 § 1 k.p. - employee’s right to challenge unjustified termination). The employee sued the employer for compensation due to unjustified termination of employment. The District Court in Rzeszów initially ruled in favour of the employee, awarding compensation. The employer appealed, but the Court in Rzeszów upheld the original decision. The employer then filed a cassation complaint to the Supreme Court, arguing that the lower courts misinterpreted Art. 30 § 4 and Art. 45 § 1 of the Labour Code; employer was not obligated to provide detailed criteria for selecting the employee for dismissal; there were legal uncertainties and inconsistencies in case law that warranted Supreme Court clarification. The Supreme Court refused to accept the cassation complaint for review. It found that the legal issues raised had already been resolved in prior case law; there was no new or unresolved legal question requiring interpretation; the lower courts correctly assessed the employer’s failure to properly justify the dismissal, including flawed evaluation criteria (e.g., employee’s family situation and availability).

According to the Supreme Court, in the statement of termination of the contract, the employer must provide all information and selection criteria that led to the dismissal of a specific employee rather than another, even though they have the same job responsibilities.

Commentary

The Supreme Court ruling upheld already existing regulations, and does not introduce new legislative measures or interpretations of the Labour Code. The basis for the ruling were the previous Supreme Court rulings.

Additional metadata

Cost covered by

Employer

Involved actors other than national government

Court National government

Involvement (others)

None

Thresholds

Affected employees: No, applicable in all circumstances
Company size: No, applicable in all circumstances
Additional information: No, applicable in all circumstances

Sources

• Supreme Court ruling of 3 August 2023 (III PSK 90/22