In its ruling of 4 September 2013 in case no. II PK
358/12, the Supreme Court resolved a significant
doubt in the area of labour law. Namely, it held that
it is permissible to employ the same employee in one
company for several trail periods; however,
providing that each of the trial periods involves a
different position.
The facts of the case to which the above judgement
of the Supreme Court pertains were that initially an
employee was employed for a trial period and subsequently for a definite term. Unfortunately, as a
result of unsatisfactory performance of the
responsibilities, the contract of employment
concluded for a definite term was terminated.
However, the employer re-employed the terminated
employee, for a trail period but, what is significant,
in another position that involved a different scope of
duties. On these grounds the employee requested
permanent employment relationship.
A trail period contract is concluded for a period of no
more than three months. Its merits are that the
employer can determine if the prospective employee
is suitable for the job, and the employee can assess
the conditions and type of work. Pursuant to Article
25 § 2 of the Labour Code, a trial period contract can
only precede conclusion of the final contract.
However, it does not follow directly from the above
article whether the same parties can conclude one or
many trial period contracts. One needs to bear in
mind the provisions of Article 251 § 1 of the Labour
Code stating that conclusion of another employment
contract for a definite term is tantamount in its legal
effects to conclusion of an employment contract for
an indefinite term but only if previously the parties
concluded two times the definite term employment
contracts for two consecutive periods. It must be
stressed that the interval between the termination of
one employment contract and conclusion of the next
cannot be longer than one month. However, under
the facts of the case there was no situation governed
under Article 25 § 2 of the Labour Code, which
contributed to the Supreme Court’s ruling that
enables employing the same employee by the same
company for several different trial periods. The
Supreme Court noted that employment of an
employee for another trial period must be related to a
different position, involving other responsibilities.
Summing up, one cannot help but agree with the
position presented in the judgement of the Supreme
Court, which enables the employer to check whether
the employee meets the requirements of several
different positions. In addition, as can be concluded
from the judgement, the employer should not employ
for a trial period the same employee in the same
position, as that would contradict the rationale of a
trial period contract and could be deemed at attempt
at circumvention of the provisions of the labour law,
and in particular of Article 251 of the Labour Code.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
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81-366 Gdynia
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of certain recent legal developments of selected areas of law. For this reason the information contained in this publication should not form the
basis of any decision as to a particular course of action; nor should it be relied on as legal advice or regarded as a substitute for detailed advice in
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