In a case for reinstatement of an employee and determination of the content of the employment relationship, the Law Firm in the person of attorney-at-law Magdalena Sobczak represented the defendant employer, i.e. the Commune Office. The employee was employed in the Office as the Commune Secretary. The employer terminated the employment contract of the employee who, as a soldier of the National Reserve Forces with a crisis call-up card, was subject to special protection against termination under the provisions of the Act on the Universal Duty to Defend the Republic of Poland. The reason for the termination of the employment contract was the employee’s failure to meet the criteria for being employed as a commune secretary specified in the Local Government Employees Act, namely, he did not have adequate seniority in the positions indicated in the Act.
The employee demanded to be reinstated and paid for the period of unemployment. The Commune Office argued that the action should be dismissed and, in the event the contract termination being found to be defective, it should be considered whether it is acceptable to reinstate an employee enjoying special protection in a position for which he does not have the necessary qualifications specified in the Local Government Employees Act. In the opinion of the defendant, in the circumstances of the case, the Court should weigh the possibility of applying the provision of Article 4771 of the Code of Civil Procedure in conjunction with Article 8 of the Labour Code, which allows the Court to award damages instead of reinstatement, because issuing a decision on reinstatement would in fact lead to an infringement of the law.
Both the Court of First Instance and the Court of Second Instance stated that in the dispute concerning the reinstatement of a protected worker, the Court is not obliged to examine the issue raised by the defendant, because the mere finding of a formal defect consisting in the dismissal of a protected worker terminates the proceedings in the case and makes it possible to reinstate the worker and award remuneration for the time of their unemployed. The worker has therefore been reinstated and his wages for the duration of his unemployment have been awarded.
Therefore, the Commune Office, represented in the dispute by attorney-at-law Magdalena Sobczak, filed a cassation appeal against the judgment of the Court of Second Instance with the Supreme Court, and the request for accepting the cassation appeal was based on the existence of a legal issue concerning the permissibility of the reinstatement of a worker who was not qualified for further employment in the post to which he was reinstated. On 7 October 2020, the Supreme Court, the Chamber of Labour and Social Security issued a judgment annulling the appealed part of the verdict of the Court of Second Instance. In the verbal motives of the ruling, the Supreme Court shared the arguments of attorney Magdalena Sobczak and found that the Court’s obligation in the circumstances of the case in question was to verify the Plaintiff’s status as having or not having the qualifications necessary for being employed as a commune secretary, and if it is found that he does not have those qualifications, the Court should take into account the possibility of applying Art. 4771 of the Code of Civil Procedure instead of the ruling on reinstatement to work.
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