Shortening the notice period - when is it possible?
The notice period is determined by the provisions of the Labor Code. However, there are situations - both on the part of the employer and the employee - that it is necessary to shorten the notice period for an employment contract. Both parties have the right to do so, but must meet the conditions set out in the provisions of the Labor Code.
The notice period and the duration and type of the contract
The Labor Code makes the notice period of an employment contract dependent on the duration of the employee's employment and the type of contract. In the case of a fixed-term and indefinite contract, the notice period is:
2 weeks - if you are employed for less than 6 months,
1 month - when the employee has been employed for more than 6 months but less than 3 years,
3 months - for an employee who has been employed for over 3 years.
For contracts for a trial period:
3 working days when the contract is concluded for a period of up to two weeks
1 week when the contract is concluded for a period longer than 2 weeks,
2 weeks when the contract is concluded for 3 months.
Shortened notice period - in what situation?
The contract may be terminated unilaterally by the employer or by mutual agreement of the parties. The unilateral shortening of the notice period applies only to a 3-month notice of an employment contract for an indefinite period and a 3-month termination of a fixed-term contract after the changes from February 22, 2016. In these cases, the employer may shorten the notice period to a maximum of 1 month. The Labor Code specifies the situations in which the employer has the right to shorten the notice period.
declaration of bankruptcy or liquidation of the company,
other reasons not related to the employee.
Declaration of bankruptcy or liquidation of a company are strictly defined situations, while the term other reasons not related to the employee covers a wide range of situations in which the employer may apply a shortened notice period. These include a change in the functioning of the employer caused by economic or organizational factors, which at the same time are not the basis for the declaration of liquidation or bankruptcy. Therefore, the employer's actions aimed at achieving a better economic result or reducing losses or changing the business profile may constitute the basis for applying a shortened notice period for reasons not related to the employee.
How to calculate the length of service in the case of a shortened notice period?
In order to determine the length of employment of an employee with a company, it is necessary to take into account all periods of employment with a given employer, i.e.
employment based on a current employment contract, i.e. a terminated contract,
employment based on previous employment contracts with a given employer (i.e. contracts for a trial period, fixed-term contracts), regardless of the breaks between contracts,
periods of employment with the previous employer, provided that the change of employer took place pursuant to Art. 23¹ of the Labor Code, as well as other regulations when the new employer is the legal successor.
The period for which the employee has received compensation should be included in the period of employment, as long as he does not start a new job during this period. However, the employee is not entitled to annual leave for this period as the parties are no longer bound by the employment relationship.
Shortening the notice period for an employment contract does not mean shortening the number of days for looking for a job. It takes 3 working days.
Compensation - when is it due?
If the employment contract was terminated as a result of a unilateral decision of the employer and a shortened notice period was applied, the dismissed employee is entitled to compensation for one or two months (depending on how much the 3-month notice period has been shortened).
Compensation is free from deduction of social security contributions, but it is the employee's income that should be taxed with PIT.
Employment certificate and the shortening of the notice period
The employer must provide the employee with the information on the shortened notice period at the time of giving the notice of termination, it is not possible to provide him with this information at a later date, which is confirmed by the jurisprudence in this area (judgment of the Supreme Court of December 19, 1990, file reference number I PR 391/90 , OSNC 1992/11/206).
Information on the shortened notice period is supplemented in the employment certificate in point 4. Here you should enter the period for which the notice period was shortened and entitling you to compensation. Importantly, the end date of the shortened notice period is entered as the end date of employment. As the reason for termination of the employment relationship, in item 3 of the employment certificate, art. 361 § 1 of the Labor Code.
Shortening the notice period and termination by mutual consent
The shortening of the notice period may also occur as a result of the parties' agreement as to its application. For an agreement to occur, it is necessary to submit a declaration of will to shorten the notice period. This declaration does not transform the procedure for terminating the contract into an agreement between the parties. The contract is still terminated upon notice by the employer or employee. Both parties are free to define how much they want to shorten the duration of the notice, as the regulations do not regulate this precisely.