Disciplinary dismissal of an employee
Disciplinary dismissal of an employee, commonly known as a disciplinary officer, is justified in the event of the employee's willful misconduct or gross negligence. Therefore, let us discuss what the explanatory procedure looks like and the possibility of such an exemption.
Before applying the discipline, the employer should comply with certain rules provided for, in particular, by the provisions of law, which will prevent him from further unpleasantness in the form of the need to go to court due to unlawful termination of the employment contract with the employee.
Termination of the employment contract without notice due to the fault of the employee
Pursuant to Art. 52 of the Labor Code, the employer may terminate the employment contract without notice due to the employee's fault in the event of:
- serious breach by an employee of basic employee duties;
- an employee committing a crime during the term of the employment contract, which prevents him from being employed in the position he holds, if the crime is obvious or has been confirmed by a final judgment;
- loss of rights necessary to perform work in the position held by the employee.
Pursuant to Art. 52 § 1 point 1 of the Labor Code the employer may terminate the employment contract without notice due to the employee's fault in the event of a serious breach by the employee of basic labor obligations. There are three elements to the concept of a gross breach of basic employee duties:
- unlawful behavior of the employee (violation of the basic employee obligation);
- violating or threatening the interests of the employer, and
- a fault that includes both willful and gross negligence.
The assessment of whether the breach of the obligation is serious should take into account the degree of the employee's fault and the threat or violation of the employer's interests. This qualification should be made taking into account all the circumstances relevant to the assessment of the employee's relationship to his duties, and not only his one-off accidental behavior (neglect).
At the same time, circumstances relevant to the assessment of the employee's relationship to their duties cannot be ignored. Correct qualification of the employee's behavior in terms of Art. 52 § 1 point 1 of the Labor Code it is not possible without a detailed and individual examination of the premises of this provision and then relating them to a precisely reconstructed factual state. Such a process is an explanatory proceeding that the employer should carry out in order not to have the slightest doubt as to the unlawfulness of the employee's act.
Employers' explanatory procedure for employees
In fact, obtaining by the employer sufficiently reliable information to justify the employer's belief that the employee has committed a reprehensible act to the extent that justifies the immediate termination of the employment contract with him, allows to obtain the conviction that the termination of the employment contract with the employee is fair and fair. The employer is expected to check the news and take the consequences or not (with the effect of not being able to apply for a disciplinary dismissal).
This check should take place as part of internal explanatory proceedings, which should be initiated immediately and carried out efficiently. No decision to initiate an explanatory proceeding is required, the course of the explanatory proceeding is subject to individual assessment on a case-by-case basis. It depends on the reasons which are to justify the termination of the employment relationship.
Under Art. 30 § 4 of the Labor Code the employer is obliged to indicate in the written declaration of will the reason for terminating the contract with the employee. However, in order to find out and investigate this cause, it is necessary to carry out an explanatory procedure.
The cause should be real and specific.
It is therefore necessary to precisely define the employee's act. What is important is the fact - the action or omission of the employee - from which the employer derives legal effects, but it is not important why the employer qualifies this behavior as a serious breach of basic employee duties.
Disciplinary dismissal of an employee may not take place after the lapse of 1 month from the moment the employer receives information about the circumstances justifying the termination of the contract. However, when the employer obtained information about the reprehensible behavior of the employee, conducted explanatory proceedings in the company and the proceedings proved the employee's fault, the monthly period for disciplinary dismissal is counted from the end of the proceedings. It led to the confirmation of the earlier allegations and proved the employee's guilt.
Start a free 30-day trial period with no strings attached!
An important issue is the method of calculating the run for the one-month period allowing for taking radical action in the form of a disciplinary dismissal. Obtaining relevant information by the employer - as the starting point for the termination of the employment contract with the employee without notice due to his fault (Article 52 § 2 of the Labor Code) - may require not only information about the employee's behavior, but also the time necessary to assess the effects of this behavior . Thus, when interpreting Art. 52 § 2 of the Labor Code It cannot be ignored that due to the constantly increasing complexity of social life and the number of factors that determine the qualifications of employees' behavior and the possibility of accusing them of improper conduct - determining whether there are circumstances justifying termination of the employment relationship more and more often requires not only establishing the facts, but also legal consultation.
The above indicates how important it is to conduct an investigation prior to the employee's disciplinary dismissal. Only solid and reliable proceedings will allow, if necessary, to defend the employer in the course of a possible trial that may be brought by the employer to the employee.
Act of June 26, 1974, Labor Code, Journal of Laws 2020.1320, i.e.
Material prepared by the team of "Tak Prawnik".
The owner of the brand "Tak Prawnik" is BZ Group Sp. z o.o.