Justyna Czerniak-Swędzioł

Vis maior as a reason for dismissal from work

One of the completely new rights given to employees as a result of the April 2023 amendments to the Labour Code is exemption from work due to force majeure in urgent family matters caused by illness or accident, if the employee’s immediate presence is necessary (Art. 1481 § 1 of the Labour Code). When interpreting the law, there is the concept of rationality of the legislator, which should be applied here. Which means that the employee does not so much have to request the employer to take time off from work due to force majeure above, but remains obliged to report absence from work in advance or report the need to leave the workplace for an urgent family matter caused by illness or accident. Applying in this case the interpretation developed on the basis of the provisions on leave on demand to Art. 1481 of the Labour Code does not remain justified. 

ASJC: 3308, JEL: K31

Evolution of parental leave

The latest amendment made to the Labour Code introduces significant simplifications to parental rights. It changes the persons who are entitled to parental leave and how certain parts of parental leave are used. Additional maternity leave is now absorbed by parental leave. The legislature has extended the period of the leave until the child reaches the age of 6, which directly affects theamount of the parental leave. Therefore currently parental leave has now become more akin with child care leave. The Labour Code has also introduced the potential to proportionally extend parental leave in connection with the employee’s annual leave at the same employer. Parental leave is granted at the written request of the employee submitted no less than 21 days before the commencement of the leave. The employee may opt out of the use of parental leave at any time with the consent of the employer and return to work. An employee benefiting from parental leave retains all employee's rights beyond the right to remuneration, which is replaced with the relevant provision of social insurance (maternity allowance). The Employee under parental leave is also protected against employment termination.

Directions of codification of labor law according to Professor Tadeusz Zieliński

Social expectations as an empirical exponent of the limits the protective function of labor law

Labor law is the law of everyday life, which is why social expectations, socio-political and economic and economic changes significantly contribute to shaping its regulations. Labor law as a branch of law directly referring to human work is exposed to the processes of constant change that should be met, and therefore should contain universal regulations. The current model of labor law is not adapted to modern socio-economic relations, hence the decreasing importance, the need for its thorough, systemic change or even inclusion in civil law. The overriding function of law is the introduction and maintenance of social order, and in the area of labor law its two basic functions are most often distinguished, i.e. protective and organizational, which complement each other. The protective function of labor law does not remain an independent value and does not work in isolation from individual labor law regulations but provides a specific background for them. Her presence manifests itself in the content of individual labor law regulations, such as: establishing, changing and terminating an employment relationship, protecting employment permanence, parental and maternity rights, or regulations regarding material employee responsibility. Labor law should be seen as a regulation concerning the community, and in place of the protective (individualistic) function, the distribution and organizing function of labor law should be restored (with a significant correction of their content) due to the fact that labor law is a tool for equalizing and promoting opportunities in social life. The time of globalization and free market economy should strengthen the position of labor law and at the same time face its new challenges. 

ASJC: 3308

JEL: K31

Legal situation of an employee returning to work after use of parental leave – postulates de lege ferenda

Labour law provisions meet the expectations of employees who are also parents and enable them to connect a professional work with parental responsibilities. There is always a guarantee of employment granted by employer to the employee after returning from parental leave and that is because of an articles 183² and 1864 of the Polish Labour Code which protect these employees. The protection is also granted to the employee who is entitled to a parental leave but he or she decides to lower his or her workload what is considered as alternative form of parental leave. If employee returns to work for his or her employment in a previously given post, equivalent post or other in accordance with his or her qualifications it should not adversely affect his or her financial situation. These labour law provision guarantees a salary which he or she would receive if he or she would not use a parental leave. These provisions do not forbidan employer to provide notice of changing termination or defi nitive termination, but as long as there is a possibility of mandate other work to the returning employee, definitive termination is not justified. The subject of analysis are valid labour law provisions in order to verify if assumption of the legislator about stabilization of employment for employees who are also parents returning to work after parental leave is fully implemented in practice. In conclusion, in relation with expanding the range of application article 186 (8) § 2 of the Polish Labour Code by jurisprudence, the position of an employee returning to work aft er using parental leave has been weakened.

Universalism of labour law a measure against social exclusion not only in the COVID-19 era

The aim of the study is to show the essence of labour law through the prism of its characteristic structures and goals. Work is one of the most important values in human life, both in the context of securing living and personal conditions. While working, one acquires additional competencies and skills, which transfer into personal development. On the other hand, unemployment has negative living and social effects. For these reasons, it is necessary to show the tools of labour law that prevent broadly understood social exclusion. Their importance becomes more evident in times of crisis, when employees are affected by its effects. Therefore, the crisis caused by the COVID-19 pandemic is an important background for the ongoing considerations.

ASJC: 3308, JEL: K31

Extended unpaid parental leave as the period of employment (not) favourable to parent employee. Conclusions de lege lata and de lege ferenda

Employees have different caring responsibilities at different stages of their life, some take care of the children, others of sick members of their family. For some years now, there have been attempts to find solutions how to resolve the key problem, which is the uneven participation of men and women in childcare, as well as in the care over other dependants. However, currently, an employee taking advantage of extended unpaid parental leave gets neither remuneration from the employment relationship nor maternity allowance, which results in the fact that most fathers still do not make use of their right to extended unpaid parental leave. Often, neither of the parents benefits from this entitlement, but they return to work right after the paid parental leave. The purpose of extended unpaid parental leave, just like in the case of other parent-related leaves of absence, is to take personal care of the child. Currently, there are a few solutions whose aim is to make it easier to the parents to combine their private and professional life. The possibility to undertake additional activities during the extended unpaid parental leave is one of them. According to the Labour Code regulations, an employee can undertake gainful employment or other activity at his/her existing or a new employer or can undertake some studying or training when he/she takes advantage of the extended unpaid parental leave on condition that it does not exclude the possibility to take personal care of the child (Art. 1862 § 1 of the Labour Code). Implementing the directive (UE) 2019/1158 into the national legal order might be an excellent opportunity to modify the already existing institution of the extended unpaid parental leave. The essential novum which the directive will introduce, and which is to encourage the fathers to take care of the children, is to entitle the working parents to two months of parental leave that is not transferrable to the other parent of the child. Certainly, financial aspects will be of significance to the parents. Therefore, it is essential that the state budget covers the two months of obligatory parental leave benefits which are solely dedicated to the fathers of the children.

ASJC: 3308, JEL: K31

An employment agreement for replacement is an agreement entered into for the duration of one employee's absence, thereby falling into the category of definitive period employment agreements under the Polish Labour Code as of 2002. There is some controversy as to the legal nature of such agreements. Such agreements for replacing employees are intended to support certain interests and functional goals of the employer. I am of the view that an agreement for replacement that is entered into for less than 6 months should be terminated with 3 days' notice without the requirement of any further regulations. For such agreements entered into for more than six months, a provision should be introduced to terminate with a two weeks' notice period requirement. Such agreements do not provide assurances for women employees who are pregnant.