Securing a claim for declaring termination of employment ineffective or for reinstatement – practical issues.

On 22 September 2023, the institution of security for a claim for declaring the termination of the employment relationship to be ineffective or for reinstatement of the employment. Aleksandra Wozniak, M.A., and Jędrzej Zieliński, M.A., our experts on employmentlaw, have compiled for employees the most important practical issues that may arise against the background of the new kpc regulation. Next week, we invite you to another instalment of material, this time with information aimed at employers. Warmly recommended!

❓ An employer terminated the employment contract of an employee during the during the 5th month of her pregnancy. In an action for reinstatement, can she claim security?

✅ Yes, as she is a specially protected employee protected employee. It is important to note that security can only be requested by employees subject to special protection against dismissal with or without notice.

❓ In 2022, the employer terminated the employee’s contract of employment contract in breach of the provisions on special protection against termination of employment relationship. Currently, a trial for reinstatement is pending before the court. Can the employee now apply for security?

✅ Yes. The new regulation provides that an employee particularly protected may file an application for security of claim at any stage of the proceedings, even if such a request by the employee has previously been validly dismissed. Thus, the new regulations apply also apply to already pending proceedings.

❓ Does the filing of a security application incur a fee?

✅ Yes. A fixed fee of PLN 100 is charged on an application to secure a claim.

❓ By what date will the court consider the application for security?

✅ An application to secure a claim is subject to examination without delay, but no later than within a week from the day it is received by the court. However, it should be borne in mind that this is an instructional deadline and its failure to be observed by the court has no legal consequences for the parties to the trial. At the same time as filing the application for security, proof of payment of the fee must be submitted.

❓ Is only a final order granting security enforceable?

✅ No. Already a non-final order of the court of first instance is enforceable, and the court will ex officio grant it an enforceability clause.

❓ When does the employer learn that the court has granted security for the employee’s claim?

✅ The employee may himself submit the security order received from the court (with an ex officio enforceability clause) to the employer. The court should also serve the freezing order on the employer so that the employer can voluntarily comply with the content of the obligation imposed on it. If the employer is unwilling to allow the employee to work, the employee can demand enforcement of the order.