In these difficult times for the economy, we are regularly asked the following question: how can we dismiss an employee? More precisely, we are asked how to do it so that, even though there is a good reason behind the termination of the employment contract, the employee will not appeal to the labour court and win a claim for unfair dismissal?
The Polish Labour Code includes a range of regulations that do not facilitate this uncomfortable task. This, however, does not mean that every dismissal is likely to end up resulting in litigation.
Our experience shows that in most instances, employees tend to appeal against their employer’s decisions to the labour court because of employer negligence, or simply because it is a shortcut. It is worth considering a few rules that must be observed in order to terminate an employment contract in a fair and reasonable manner.
Below we present four out of eight rules that in our opinion are key for making an effective dismissal:
The reasons for the termination must be specific and true. They must be indicated in a termination notice for an employment contract for an unspecified term. Therefore, the employer cannot simply write, as often happens: “loss of confidence”. To make a dismissal, the employer needs to prepare, like for any other process at the company. Obviously, the employer has the right to part ways with an employee who it feels is underperforming, but the reasons for dismissal must be objective. It does not matter how many awards and recognitions the employee won for their work, or that they have never received any warning notice at work. If they are failing to perform their duties properly, they may be dismissed. On the other hand, it is true that the employee’s disciplinary record, warning notices, either in writing or by email, and a description of any incidents of non-compliance could serve as important evidence in legal proceedings against the employee.
The dismissal must be non-discriminatory. In a situation where the employer wants to dismiss the highest-earning employee, or the only employee who works part-time, or if it could be said that there are reasons of sex, age, race, religion or others – the dismissal process must be well-thought out. Discrimination will certainly be claimed in court.
The employer must state all the reasons behind the dismissal. In the situation where the dismissal process has been well-prepared, it is likely that various breaches of the employee’s duties will emerge. We encourage employers to make a detailed and thorough list of reasons for dismissal in the termination notice. It is worth dedicating time and attention to preparing an appropriate termination notice for two objectives: firstly, it must always be assumed that the employer may be convinced that their dismissal is reasonable and justified. The more extended and precise the arguments are, the greater the chance of achieving this purpose. Secondly, it follows from court decisions that if even one of the grounds for termination is proved in court, assuming that it is sufficient for the termination of the employment contract, then the court will dismiss the employee’s claim.
Employers tend to specify a loss of confidence as a general cause for dismissal. Disregarding the fact that this argument does not satisfy the first two rules for the effective termination of an employment contract, a loss of confidence should be considered not as a reason, but as a result of the employee underperforming their duties. Therefore, we recommend stating that the employee breached a, b and c, which resulted in a loss of confidence. But be aware that a loss of confidence is proportional to the position held and the responsibilities at the employer, and that the court will also assess this argument proportionally.