The amendment that came into effect on 22 February 2016 has significantly altered the rules for employing workers on the basis of definite term contracts. Currently, an employer may conclude only three definite term contracts with one employee, and the combined duration of these contracts must not exceed 33 months. Any time elapsed between consecutive contracts is disregarded. Employment contracts for a trial period are not taken into account in calculating these limits. Once the limit of 33 months or 3 definite term contracts is exceeded, the employment contract is transformed, by operation of law, into an indefinite term contract.
The restrictions on concluding definite term contracts do not apply to employment contracts with replacement workers, for performing work of a temporary or seasonal nature, and for performing work during a term of office. If the employer can demonstrate having an objective rationale for concluding definite term contracts, such as the need to implement multi-year contracts or on-time projects, the above-described limits do not apply. However, these exceptions will be allowed only if the conclusion of a contract in a specific case meets real needs of a temporary nature and to the extent necessary in the light of all the circumstances relating to the execution of such contract. Furthermore, when a definite term contract is entered into with the employer having shown its own objective reasons for doing so, the employer will be required to notify it to the competent Regional Labour Officer. Failure to comply with this obligation will be deemed an offence against employee rights and be penalised with a fine of PLN 1000 to PLN 30000.
Definite term contracts entered into before and continuing on the date of entry into force of the amendment act are subject to the 33-month limit. However, only the period of employment from the amendment effective date (i.e. from 22.02.2016) is counted towards that limit. For example, if an employee concluded two definite term contracts: (1) from 01.01.2014 to 31.12.2015 (24 months in total) and (2) from 01.01.2016 to 31.12.2016 (12 months in total), then if a consecutive contract is made as from 01.01.2017 for a period of 18 months, this third definite term contract would not be subject to conversion into an employment contract of indefinite duration because the period of employment calculated from 22.02.2016 does not exceed the limit of 33 months.
As to how the number of contracts is calculated, a contract that is continuing on 22.02.2016 will be deemed the first contract or, alternatively, the second contract if it was concluded in accordance with the former rules (i.e. the interval between the termination of the first contract and the execution of the second one does not exceed 1 month). Therefore, if the employee entered into three contracts for a definite term, namely: (1) from 01.01.2014 to 31.12.2014, (2) and following a three-month hiatus, from 01.03.2015 to 31.12.2015, and (3) from 01.01.2016 to 31.12.2016, contract number (3) will be deemed the second contract in line with the new provisions. If, on the other hand, the parties decide to make another consecutive (fourth) definite term contract following the termination of contract number (3), such contract would be considered the third contract under the new regulations.
The rules for terminating employment contracts for a definite term have also been modified as of 22 February 2016. Prior to this amendment, termination was only possible in the case of definite term contracts concluded for a period exceeding 6 months and provided that the possibility of the contract’s termination is contemplated in the contract. Previously there was a period of notice of 2 weeks. At present, the length of the period of notice is contingent on the period of employment (the number of years of service) with the particular employer and is: 2 weeks for less than 6 months of employment; 1 month when the time of employment was at least 6 months; and 3 months when employment has continued for at least 3 years. The parties may terminate the contract, irrespective of whether it includes a termination clause or not.
Calculation of notice periods for contracts that are continuing on the effective date of the amendment (i.e. on 22.02.2016) may be a source of some confusion. Pursuant to the transitional provisions, the previous regulations continue to determine whether or not it is permissible to terminate a definite term employment contract that remains in effect on the effective date of the amendment and has been concluded for up to 6 months or for more than six months, where the contract does not provide for termination with a 2-week period of notice (no termination clause). This means that these contracts may not be terminated formally. In contrast, the new notice periods are applicable to contracts entered into for a period of more than 6 months with the option of termination. However, the period of employment prior to 22.02.2016 is not to be taken into account when the respective notice period is calculated.
For example, if a contract has been concluded for a period of 2 years from 01.01.2015 to 31.12.2016, and the notice is delivered to the employee on 20.06.2016, then the period of notice will be 2 weeks, because the time of service as calculated from 22.02.2016 is less than 6 months. If however the notice is handed to an employee on 20.09.2016, then the period of notice would be 1 month since the time of service as calculated from 22.02.2016 will be more than 6 months but shorter than 3 years.
On the other hand, for the purposes of determining the length of the period of notice for definite term contracts entered into on or after 22.02.2016, it is necessary to include the period of service before the effective date of the amendment, regardless of any interruptions in employment or the type of employment contract concluded.
To illustrate, the employer and the employee entered into two consecutive definite term contracts for the following periods: (1) from 01.01.2015 to 29.02.2016 and (2) from 01.03.2016 to 31.12.2017. The notice is delivered to the employee on 30.06.2016. The period of notice will be 1 month since the period of service as calculated from 01.01.2015 is at least 6 months but less than 3 years.