How to handle unfair dismissal claim?

Terminating an employee can be a complex matter that carries a risk of an unfair dismissal claim against the employer, no matter how careful the company may be. When letting an employee go, it is important that it is done legally and, in a fair, just and reasonable manner.
 
Under Polish law, employment contracts can be terminated by the employer either for reasons attributable to the employee (so termination due to employee’s fault) or for reasons not attributable to the employee (so termination without employee’s fault).
 
In terms of termination due to employee’s fault, this is usually negative assessment of their work. This includes usually poor performance, a failure to comply with instructions of superiors, improper conduct or loss of confidence. If the employer is planning to give notice to the employee for any of the above-mentioned reasons, he should prepare the termination letter and hand it over to the employee. What is specific for Polish law, is that there has to a concrete and objective reason for terminating the contract by the employer otherwise the employee can be reinstated by the court in the case of a court dispute.
 
The special case is when an employee’s misconduct is considered to be so bad that it can not be tolerated. This happens in the following cases:
 

• an employee commits gross violation of his basic duties (drinking alcohol in the workplace, unauthorized absences etc.),
• an employee commits the criminal offence which prevents further hiring him and
• an employee loses his license or authorization due to his fault in the situation where this license is necessary to perform his tasks.

 
In the case of gross misconduct, the employer is allowed to terminate the employment immediately without the notice period.
 
Termination without employee’s fault takes place when the employer is planning to carry out the restructuring process in the company and dismiss people for economic reasons or when the employer gets liquidated or when the employee has been ill for longer than 6 months. Usually, it is not about any negative assessment of the employees – simply the company has no income and has to lay off workers.
 
In each case, if the reason given as the decision to lay off people is not a fair reason, or the employer has failed to act reasonably in all the circumstances, this may give rise to an unfair dismissal claim.
 
What can be done to avoid unfair dismissal claim? What are the sufficient grounds under Polish employment law? What the employer should remember about?
 
What constitutes a fair procedure will depend on the reason for the dismissal. Even if the employer is able to establish a fair reason for the dismissal, the court will still consider whether they acted reasonably or unreasonably in all the circumstances in treating it as a sufficient reason for dismissal.
 
Reasons for terminating employment contract
 
The reasons for terminating the employment agreement with notice fall into two broad categories:
 

• termination for cause (misconduct or poor performance) 

Termination letters in the case of negative assessment of the employee need to include real, specific and understandable justification of the termination. If the employee pursues legal action, the employer will have to prove that the reasons given in the notice of termination were sufficient for dismissal or that the assessment was not biased.
 

• termination as a result of restructuring (redundancy) 

Termination letters in the case of reorganization indicate that the grounds of redundancy is business restructuring or reduced workload or company closure. This should be the only reason for termination of employment. If the employee pursues legal action, the employer will have to prove that the grounds given by the company is genuine.
 
How to minimize the risk?

To minimize the risk of an unfair dismissal claim, employers must demonstrate that their reasons for the dismissal fall within the scope of ‘fair’ reasons specified by law. These include:
 

1. Misconduct: Dismissal due to misconduct may be considered fair if the employee has engaged in unacceptable behaviour that undermines their ability to perform their role or jeopardises the company’s reputation. However, employers must ensure they have strong, documented evidence to support the dismissal on misconduct grounds and must follow the company’s disciplinary procedures.

 

2. Performance: Employers may dismiss an employee for poor performance, but only after providing them with adequate support and a reasonable opportunity to improve. It is crucial for the employers to keep records of performance appraisals and any steps taken to help the employee before deciding on dismissal. While drafting the termination letter, the employers should indicate examples of poor performance and be able to provide sufficient evidence.

 

3. Redundancy: If an employee’s position is no longer needed due to business restructuring, reduced workload, or company closure, a dismissal on the grounds of redundancy is considered fair, provided the employer follows appropriate redundancy procedures. The best option is to have resolution of the board which announces the adopted changes to the company and the redundancy process.

 
Protection from dismissals
 
It should be remembered that under Polish labour code all employees are protected against termination in a regular mode (i.e. with the notice period) during leaves and employee’s justified absence. In addition to that, certain categories of employees are protected against termination if they meet certain criteria (e.g. pregnancy, pre-retirement age etc.). The termination letter delivered to an employee who is protected by law is contrary to the law. If the employee appeals to court, they will probably be reinstated to work. Whether it is downsizing or individual dismissal – the process should be well planned and supervised from the very beginning.
 
Conclusions
 
To avoid unfair dismissal complaints, employers should plan the dismissal process carefully. Employees who have been wrongfully or unfairly dismissed can make a claim against their employer to an employment court.
 
In demonstrating fair reasons for dismissal, employers must remember that procedural fairness is as important as the reason for dismissal. Employers should establish and consistently follow clear and transparent procedures for handling disciplinary and performance issues.