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 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 month,
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
where 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.
MILLER, CANFIELD,
W. BABICKI, A. CHEŁCHOWSKI I WSPÓLNICY SP.K.
ul. Batorego 28-32
81-366 Gdynia
Tel. +48 58 782-0050
Fax +48 58 782-0060
gdynia@pl.millercanfield.com
ul. Nowogrodzka 11
00-513 Warszawa
Tel. +48 22 447-4300
Fax +48 22 447-4301
warszawa@pl.millercanfield.com
ul. Skarbowców 23a
53-125 Wrocław
Tel. +48 71 780-3100
Fax +48 71 780-3101
wroclaw@pl.millercanfield.com
Disclaimer: This publication has been prepared for clients and professional associates of Miller Canfield. It is intended to provide only a summary 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 individual
cases. The services of a competent professional adviser should be obtained in each instance so that the applicability of the relevant legislation or other
legal development to the particular facts can be verified.