Change of notice periods - should the provisions in the contract be changed?
In order to face today's competition, entrepreneurs must not only invest in modern technologies, but also appropriately allocate funds to the needs of increasing employment in the company. The constantly changing provisions of the labor law cause many doubts in the situations of establishing, terminating and extending the employment relationship. One of them is the need to make changes to temporary employment contracts in the aspect of changes to notice periods in the Labor Code.
Status valid until February 21, 2016
Pursuant to Art. 33 of the Labor Code, when concluding a fixed-term employment contract, longer than 6 months, the parties may provide for the admissibility of early termination of this contract with two weeks' notice.
In connection with the above, employers, if necessary, when concluding temporary employment contracts for a period longer than 6 months, included a clause in the content of such contract that the parties provide for the possibility of early termination of the employment contract with a two-week notice period.
The fulfillment of the terms of a periodic agreement lasting more than 6 months and the application of the above clause made it possible to apply a shortened two-week notice period.
Employment contracts over 6 months with a short notice clause after February 22, 2016
In connection with the amendment to the Labor Code, doubts arose - whether in relation to already concluded periodic employment contracts with a clause enabling a shortened notice period, activities should be carried out to change this provision in the form of an annex to existing contracts?
However, due to the repeal of Art. 33 of the Labor Code and pursuant to Art. 14 sec. 3 of the amendment to the Labor Code in the event of termination of an employment contract concluded before February 22, 2016. for a specified period of more than 6 months and still in force, which at the same time includes a provision on the possibility of terminating it with a shortened two-week notice period, Art. 36 § 1 of the Labor Code.
As a result, as of February 22, 2016, the clauses enabling early termination of an employment contract concluded for a period of more than 6 months with a two-week notice period shall expire, therefore it is not necessary to make any provisions changing the employment contract in question.
The notice period for an employment contract over 6 months with a short notice clause after February 22, 2016.
Pursuant to Art. 36 § 1 of the Labor Code, for employment contracts concluded before the date of amendment and still pending, the application of the notice periods will be as follows:
- 2 weeks, if the employee has been employed for less than 6 months;
- 1 month, if the employee has been employed for at least 6 months;
- 3 months, if the employee has been employed for at least 3 years.
The above means that temporary employment contracts concluded for a period of more than 6 months with a clause allowing for an earlier two-week notice from February 22, 2016. should be terminated with the above notice periods.
Equal notice period for fixed-term and indefinite employment contracts
It is worth noting that on February 22, 2016. the notice period previously quoted both for a definite and an indefinite period is the same, and consequently it was dependent on the length of service with the current employer.
Finally, it should be emphasized that when calculating the length of service with a given employer needed to determine the notice period for a temporary employment contract lasting on the date of the amendment, only the period of employment with the current employer from February 22, 2016 should be taken into account. This means that in the case of the above contracts, the periods of employment with a given employer before the date of amendment will not be taken into account.
For example, an employee is employed for a specified period from January 1, 2015. until December 31, 2016 The employer, wishing to specify the notice period, will take into account the employment period starting from February 22, 2016, and not from January 1, 2015. In this case, the notice period will be 1 month.
On the other hand, in a situation where a fixed-term employment contract is concluded from the date of entry into force of the amendment, then when calculating the length of the notice period, the full previous employment period with the employer is taken into account, including the period before the date of the amendment, i.e. on February 22, 2016.
An example may be another employment contract concluded for a fixed period from February 25, 2015. until December 31, 2016 The previous employment contract was terminated on February 21, 2016. When specifying the notice period, the employer will in this case take into account the full period of employment of a given employee in his company, including all employment contracts lasting until February 21, 2016. It is worth noting that the break in work in this situation does not affect the notice period, which is confirmed by the resolution of the Supreme Court of January 15, 2003. with reference number (III PZP 20/02, OSNPiUS 2003/3/1.
To sum up, in relation to fixed-term employment contracts, longer than 6 months, containing a clause for early termination of this contract with a two-week notice and lasting on February 22, 2016. it is not necessary to amend the content of the contract, and the length of service necessary to determine the notice period will be counted from the date of the amendment of the Labor Code, i.e. from February 22, 2016.