Salary cut for protected employees
An employer may reduce the salary of an employee who works reduced hours instead of taking childrearing leave, the Polish Supreme Court ruled in the judgment dated 12 May 2011 (Case No. II PK 6/11).
Following maternity leave, instead of taking childrearing leave the employee returned to work and requested that her working time be reduced by 1/10th under Labour Code Art. 1867. Under Labour Code Art. 1868, such persons are protected from dismissal from the date they apply for reduced working hours until they return to their full working time, up to a total of 12 months.
Soon after returning from maternity leave, the employer’s financial condition significantly worsened, and it was decided to revise the pay rules and reduce staff salaries across the board.
In order to introduce the new, less favourable pay rules, the employer served an amending termination notice on all employees. The employee in question refused to accept the notice, however, and filed a challenge in court.
The courts of first and second instance upheld her challenge. In their view, as a protected employee, she should not have been served with an amending notice at all. They based their conclusion on principles of intertemporal interpretation. Art. 24113 was introduced into the Labour Code by an amending act dated 9 November 2000, effective 1 January 2001, while Art. 1868 went into effect on 1 January 2009. The courts took the view that under the principle of lex posteriori delegat legi priori, the later provision repealed the prior provision, which in practice meant that exclusion of application of regulations restricting the possibility of terminating employment conditions of protected employees does not apply to an employee who elects to work reduced hours instead of taking childrearing leave.
The employer filed a cassation appeal, which was upheld by the Polish Supreme Court.
The judge who authored the opinion for the Supreme Court criticised the finding of the lower courts that Labour Code Art. 1868 repealed Art. 24113, arguing that the rule of implicit repeal applies only when the old and new provisions govern the same subject matter, which in this case they did not. Thus only express repeal could exclude application of Art. 24113 with respect to protected employees under Art. 1868.
The court also reasoned that granting protection from across-the-board salary cuts to a single employee would put her in an unjustified privileged position.
According to Agnieszka Lisiecka from the Employment Law practice at Wardyński & Partners, “This ruling by the Supreme Court is clearly correct. Labour Code Art. 24113 expressly provides that when terminating the existing terms of the employment contract or other act establishing the employment relationship, in connection with introduction of less favourable conditions in the collective agreement or pay rules, provisions limiting the permissibility of terminating such agreement, for example Labour Code Art. 1868, do not apply. While it is true that discrepancies have arisen in the case law concerning the scope of the concept of ‘provisions limiting the permissibility of termination,’ it is nonetheless clear that this concept extends to provisions concerning specific protection of employment.”
It should also be pointed out that the protection sought by the employee does not arise under the act concerning group layoffs (the Act on Specific Rules for Termination of Employment for Reasons Not Attributable to Employees).
Agata Miętek, Employment Law practice, Wardyński & Partners