Union officials protected under fixed-term contracts


A member of the management board of a workplace trade union or a union member appointed to represent workers in dealings with the employer may demand reinstatement if their employment under a contract for a definite period is terminated.

Depriving them of this right would be unconstitutional.

In a ruling handed down on 11 July 2010, the Polish Constitutional Tribunal held that the special protection of the employment relationship of union activists provided for in Art. 32(1) of the Trade Unions Act extends to all forms of employment. This means that they enjoy protection whether employed under a contract for an indefinite period or a contract for a fixed term.

The tribunal was presented a certified legal question under Art. 50 §3 of the Labour Code, which provides that in the event of termination upon notice of an employment contract concluded for a definite period or for the time required to perform a specific task, in violation of termination notice regulations, the employee is entitled only to damages and not reinstatement. The Pabianice District Court sought a ruling from the Constitutional Tribunal on whether the inability for a union activist to seek reinstatement was an impermissible limitation on his or her protected employment status, as it could have an impact on the activity of workplace labour organisations and prevent them from performing their essential task of protecting the interests of workers. The district court took the view that this provision of the Labour Code was inconsistent with the freedom of association (Constitution Art. 59) and principles of social justice (Constitution Art. 2).

In its deliberations from the bench, the Constitutional Tribunal stressed that, as a rule, when an employment contract for a definite period is terminated upon notice, the employee is entitled to seek damages, but employees protected under Art. 50 §5 of the Labour Code (pregnant women or employees on maternity or paternity leave) or Art. 32 of the Trade Unions Act may seek either reinstatement or damages.

“This judgment and the oral justification do not state that the protection afforded under Art. 32 of the Trade Unions Act prevents the dissolution of the employment relationship at the end of the stated contract term,” said Elżbieta Gutkowska from the Employment Law practice group at Wardyński & Partners. “Once the stated term is over, a claim for reinstatement would be moot. However, a more thorough analysis of the ruling will not be possible until the Constitutional Tribunal releases its written justification.”

The judgment is final, and the holding will be published in the Journal of Laws.