Labour law disputes in Polish legal system

Labour law disputes in Polish legal system

WYDAWNICTWO C.H.BECKWARSZAWA 2017

Labour law disputes

in Polish legal system

Krzysztof W. BaranJustyna Czerniak-Swędzioł

Daniel KsiążekMarcin Wujczyk

Wydawca/Publisher: Anna Kamińska

Recenzent/Reviewer: dr hab. Krzysztof Stefański

© by Krzysztof W. Baran, Justyna Czerniak-Swędzioł,Daniel Książek, Marcin Wujczyk 2017

Wydawnictwo C.H.Beck Sp. z o.o.ul. Bonifraterska 17, 00-203 Warszawa

Skład i łamanie: DTP ServiceDruk i oprawa: Elpil, Siedlce

ISBN 978-83-812-8098-3

ISBN e-book 978-83-812-8099-0

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Table of contents

Chapter 1. Labour disputes, K.W. Baran ..................................................................... 1

Chapter 2. Organisation of the system of legal protection in labourdisputes, K.W. Baran ................................................................................................. 12

Chapter 3. Right to a fair trial in individual labour disputes, K.W. Baran ......... 35

Chapter 4. Jurisdiction of labour courts, K.W. Baran .............................................. 45

Chapter 5. Procedures for the amicable resolution of individual labourdisputes, K.W. Baran ................................................................................................. 75

Chapter 6. Settlement agreements in individual labour disputes, K.W. Baran ... 99

Chapter 7. Separate procedure in labour law matters, D. Książek, M. Wujczyk ... 125

Chapter 8. Registration procedures in collective labour law, K.W. Baran .......... 244

Chapter 9. Collective labour disputes, J. Czerniak-Swędzioł, K.W. Baran,M. Wujczyk .................................................................................................................. 258

Chapter 10. Other industrial actions, M. Wujczyk ................................................... 328

Chapter 11. Lockout, M. Wujczyk ................................................................................. 332

Chapter 12. Liability for strike and other industrial actions,J. Czerniak-Swędzioł .................................................................................................. 334

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Chapter 1. Labour disputes

K.W. Baran

§ 1. Overall characteristics of labour disputes

The labour disputes are intrinsic characteristics of labour relations in the states of industrial civilization. The starting point for further deliberations will be an observation that the essence of a labour dispute1 is a conflict2 which means specific interactions of negative cooperation between at least two actors in the la-bour and employment relations, where one of the parties raises certain demands or takes other actions which result in resistance on the part of the opponent who refuses or otherwise opposes such demands or actions.

In sociology there is no consensus regarding the assessment of the social con-sequences of conflicts. In particular, it remains controversial whether these con-flicts – and this refers also to the conflicts in labour and employment relations – should be considered pathologies. In functional terms, a conflict is considered a dysfunctional factor in a system which destroys the system from within and which cannot be explained by the needs of the system as a whole3. It undermines the stability of the system which is maintained through its internal mechanisms of adaptation and social control. It seems that this sociological theory was a point of reference for the ideologies prevailing in the totalitarian regimes of the 20th century which did not recognize pluralism of collective interests in the labour relations4. An example illustrating that view may be a theory of non-conflicting

1 See: J. Wróblewski, Prawo i homeostaza społeczna [Law and social homeostasis], PiP 1982, No. 12, p. 38; J. Kurczewski, Spór i sądy [Dispute and courts], Warsaw 1982, p. 47–49.

2 See in particular: M. Magowska, Społeczno-kulturowe podłoże konfliktów prawnych [Social and cultural grounds of legal conflicts], PAN 1991, p. 10–13 and literature referenced there.

3 See in particular J. Szacki, Historia myśli socjologicznej [History of sociological thought], vol. 2, Warsaw 1983, p. 788–789.

4 See in particular: I. Suhij, V. Lepekhin, Evolution of Interest Representation and Development of Labour Relation in Russia, [in:] J. Hausner, O.K. Pedevsen, K. Ronit (eds), Evolution of Interest Representation and Development of the Labour Market in Post-Socialist Countries, Cracow 1995,

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socialism5 widespread in the former socialist countries of the central and eastern Europe. It was founded on the false assumption that in the labour relations all objective antagonisms between labour and capital had been overcome through socialisation of the means of production. As a consequence, the party authorities treated the labour disputes, in particular the collective labour disputes, as acts of social disobedience against the regime inspired by the „class” enemy and rec-ommended that the state security bodies should fight them without tolerance. Such approach to the collective disputes often resulted in progressive escalation of protests at work, and in Poland in the 80s the strikes were almost permanent and were participated by large numbers of workers.

According to the sociological theory of conflict, any disputes and conflicts are considered phenomena which are almost naturally connected with the develop-ment of the civilization, from its very outset. They are not considered a dividing factor but a driving force for development changing the status quo established in the society. This applies also to the disputes in the workplace, in particular in the countries with free market economy. The disagreements between workers and employers are settled by the parties themselves, usually with the use of irenic methods6, without resorting to state coercion.

In describing the labour disputes I would like to show how a conflict aris-ing in the workplace transforms into a dispute resolved in accordance with the methods prescribed by law. That process7 of transformation is universal and ap-plies both to individual and collective disputes. It starts when a person or a group of persons becomes aware that harm was done (naming). At the next stage the harm is attributed to the behaviour of a specific party (blaming). That is where the process of „revitalisation” of law occurs in the mind of a party to a dispute, manifested by the sense of violation of rights, and consequently the conflict is in-terpreted through the applicable legal norms. Specifically, this means „adjust-ment” of the claims raised by the active party to a dispute to the procedural rules,

p. 197–201. See also B. Wypchło-Grymek, Prawne uregulowania w przedmiocie sporów zbiorowych pracy a zasada zachowania pokoju społecznego [Legal regulation of collective disputes and the principle of social peace], Studia z zakresu prawa pracy i polityki społecznej 1996, p. 21.

5 See in particular: T. Zieliński, Prawo pracy. Zarys systemu [Labour law. An outline of the system], vol. 3, Warsaw–Cracow 1986, p. 124–125. See also A. Kovzik, O. Zagorulskaya, Evolution of Interest Representation in Belarus, [in:] J. Hausner, O.K. Pedevsen, K. Ronit (eds), Evolution..., p. 253–260.

6 Such approach to the issue refers to the theory of „balance” formulated by R. Dahrendorf (Teoria konfliktu w społeczeństwie przemysłowym [Theory of conflict in the industrial society], [in:] W. Derczyński, A. Jasińska-Kania, J. Szacki (eds), Elementy teorii socjologicznych [Elements of sociological theories], Warsaw 1975, p. 433) who expressed the view that neither the theory of conflict nor the functional theory can be accepted as the only right one since the society „has two faces of equal reality: one of stability, harmony and consensus and one of change, conflict and constraint”.

7 See in particular: W. Felstiner, R. Abel, A. Sarat, The Emergence and Transformation of Dis-putes: Naming, Blaming, Claiming, vol. 15, Law and Society Review 1980–1981, No. 3–4, p. 635–636.

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adequate for resolution of the conflict. A direct consequence of such a process is typification of roles of the parties. It should be borne in mind that the role ex-pectations of the opponents in a dispute are expressed in the procedural norms. The norms deprive the opponents of their individual characteristics8 and this leads to institutionalisation9 of the conflict and transformation of the latter into a formalised legal dispute10. In this study I will focus solely on the conflicts aris-ing in the labour and employment relations which were transformed into legal disputes – the labour disputes.

§ 2. Delimitation of individual and collective labour disputes

The starting point for further deliberations should be a clear definition of la-bour disputes according to which these are disputes between parties governed by labour law, the subject-matter of which falls within the scope of labour law. It is obvious that with such a general definition the category is not uniform. It may be organised on the basis of various criteria. According to a classic formula11 adopt-ed already in the 19th century, as regards labour disputes a distinction can be made between conflicts regarding establishment of a new norm and conflicts re-garding interpretation or application of the already existing norm. The former re-fer to the workers as a collectivity and the latter refer to an individual employee. The idea presented here has given rise to the classification of labour disputes into individual and collective labour disputes12.

A relation between individual and collective labour disputes causes certain difficulties, also in the Polish legislation. They arise as early as the stage of defi-nition of both categories of disputes. The point is that, de lege lata, there is no legal definition of an individual labour dispute. The labour law scholars are

8 G. Skąpska, Prawo a dynamika społecznych przemian [Law and dynamics of social transforma-tions], Cracow 1991, p. 69.

9 See: W. Pańkow, Instytucje prawa pracy w procesach transformacji [Institutions of labour law in the processes of transformation], Warsaw 1993, p. 135–136.

10 As regards the state’s pursuit of formalisation of social conflicts, see in particular: A. Gryniuk, Przymus prawny jako środek rozwiązywania konfliktów społecznych w dużych i wielkich grupach społecznych [Legal coercion as a measure for resolution of social conflicts in large and very large social groups], Acta Universitatis Nicolai Copernici, Prawo XXVII, Toruń 1990, p. 51–53.

11 S. and B. Webb, Industrial Democracy, vol. 1, London 1897, p. 182 ff.12 Comparative law aspect: K.W. Baran, Spór indywidualny a zbiorowy w prawie pracy [Individual

vs. collective dispute in labour law], [in:] G. Goździewicz (ed.), Zbiorowe prawo pracy w społecznej gospodarce rynkowej [Collective labour law in the social market economy], Toruń 2000, p. 223–224.


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seeking to fill this gap and a predominant approach is that individual labour disputes are recognised in substantive categories which refer mainly to the area of obligations. Some authors emphasize the procedural aspect and invoke a cat-egory of a procedural claim (roszczenie procesowe). A specific disproportion of opinions exists also with regard to the matter in dispute. The prevailing view is that the latter means rights and obligations of the parties to a legal relation-ship where some authors focus mainly on the employment relationship. How-ever, all of them, with no exception, either directly or indirectly, identify an em-ployee and an employer as the parties to an individual labour dispute. It must be stressed that each of them may be either a plaintiff or a defendant in the le-gal proceedings.

Therefore, it is reasonable to consider that an individual labour dispute is a difference of opinions of the parties to a specific legal relationship – most likely the employment relationship – governed by labour law in a large sense, regard-ing the existence or non-existence of a legal relationship or creation or modifi-cation of the legal relationship or the scope of the rights and obligations arising from that legal relationship.

Having characterised the individual labour disputes, now I would like to dis-cuss the collective labour disputes. According to a definition adopted in Art. 1 of the Act on resolution of collective disputes (collective disputes act – ustawa o rozwiązywaniu sporów zbiorowych) these mean disputes between workers and employer or employers in relation to working conditions, wages or social benefits and trade union rights and freedoms of workers or other groups who enjoy the freedom of association in trade unions. This refers to two basic criteria for differ-entiation of labour disputes, namely the personal (ratione personae) and material (ratione materiae) criterion13.

I should start the analysis with the personal aspect. The starting point will be an observation that the range of actors in both categories of disputes is varied, however, this refers mainly to the „workers’ part”. A participant in an individual dispute is a single person while the participant in a collective dispute is a group of persons. The labour law literature sometimes presents a simplistic opinion

13 See in particular: G. Goździewicz, Spory zbiorowe [Collective disputes], Toruń 1991, passim; W. Masewicz, Ustawa o związkach zawodowych. Ustawa o rozwiązywaniu sporów zbiorowych [Act on trade unions. Act on resolution of collective disputes], Warsaw 1998, p. 124; H. Lewandowski, Spory zbi-orowe pracy [Collective labour disputes], Studia z zakresu prawa pracy i polityki społecznej 1997–1998, vol. 4, p. 127 ff.; B. Cudowski, Spory zbiorowe w polskim prawie pracy [Collective disputes in the Polish labour law], Białystok 1998, passim; Z. Salwa, Nowa regulacja rozwiązywania sporów zbiorow-ych [New regulations on resolution of collective disputes], PiZS 1991, No. 8–9, p. 50; A. Świątkowski, Rozwiązywanie sporów zbiorowych pracy [Resolution of collective labour disputes], Studia z zakresu prawa pracy i polityki społecznej 1994, vol. 1, p. 292 ff.; K.W. Baran, Zbiorowe prawo pracy. Komentarz [Collective labour law. Commentary], Warsaw 2010, p. 392–394.

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according to which in both categories of disputes these are exclusively workers. This refers to both categories of labour disputes. As regards individual labour disputes, under Art. 476 § 5 (1) of the Code of Civil Procedure (KPC) a party to a dispute shall be workers within the meaning of substantive law as well as former workers and members of agricultural production cooperatives (rolnicze spółdzielnie produkcyjne), persons who perform work under a home-based work contract (umowa o pracę nakładczą) as well as members of the family and heirs of workers, of members of production cooperatives, of persons performing cottage work as well as other persons who may raise labour law claims under separate laws. In practice, this means that a party to an individual labour dispute may be even a person who performs work within an administrative service relationship14 (for example a Police or Border Guard officer pursuing pregnancy and maternity claims before labour courts)15.

As regards collective disputes, the question who is a party to a dispute on the workers’ part is more complex than in the case of individual disputes. A literal interpretation of Art. 1 of the Act on resolution of collective disputes indicates only workers. Only a reference to the provisions of Art. 2 of that act which, as part of institutionalization of the collective conflicts, authorizes trade unions to rep-resent rights and interests of workers, justifies extension of the personal scope of the parties to a dispute to include other categories of working men16. Specifi-cally, these include: members of agricultural production cooperatives, persons performing work under agency contract or a home-based work contract (umowa o pracę nakładczą), officers of the Police, Border Guard, Prison Service, National Customs and Treasury Service, pensioners and the unemployed. This means that collective disputes may be initiated even by some officers of uniformed services, except professional soldiers and officers of ABW (Internal Security Agency), BOR (Government Protection Bureau) and CBA (Central Anti-Corruption Bureau).

In the context of a normative regulation adopted in Art. 1 and 2 of the Act on resolution of collective disputes, it seems reasonable to differentiate between the workers’ part in a material sense and in a formal sense. A party in a materi-al sense means all persons listed above for whom and on whose behalf a dispute is initiated. On the other hand, a party in a formal sense in a collective dispute

14 See: T. Kuczyński, Właściwość sądu administracyjnego w sprawach stosunków służbowych [Jurisdiction of administrative courts in cases based on service relationship], Wrocław 2000, p. 16.

15 For more detail see: K.W. Baran, Sądowy wymiar sprawiedliwości w sprawach z zakresu prawa pracy [Court jurisdiction in labour law matters], Warsaw 1996, p. 201–202; M. Mędrala, Funkcja ochro-nna cywilnego postępowania sądowego w sprawach z zakresu prawa pracy [The protective function of civil-law proceedings in labour law matters], Warsaw 2011, p. 142 ff.

16 See Art. 2 of the Act on trade unions [ustawa o związkach zawodowych]. For more see in particular: B. Cudowski, Spory... [Collective disputes...], p. 56–63.


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means trade unions representing the rights and interests of workers and other working people. It seems that an exception to the principle is a situation where the subject-matter of a collective dispute are trade union freedoms and a trade union organisation initiates such dispute directly for the protection of its own respective interests.

Under provisions of Art. 2 of the Act on resolution of collective disputes this may be taken as a specific obligatory statutory representation. Consequently, that provision may be the basis for an opinion that trade unions have a specific mo-nopoly on conducting collective disputes on the workers’ part17. Therefore, any disputes of that kind inspired by non-trade union entities, such as protest com-mittees appointed ad hoc by the personnel, are illegal. Adoption on such restric-tive normative regulations is questionable in view of a directive of negative trade union freedom. However, on the other hand, in the free market economy, it re-duces the threat of anarchy in labour relations.

In some sense the statutory monopoly is toned up by the fact that as regards the collective rights and interests, the trade unions represent in a collective dis-pute all workers, regardless of their trade union membership. It is worth noting that such „collective procedural capacity” is granted to every trade union which unites at least 10 members (Art. 251(1) of the Act on trade unions).

It should be emphasized that also the employees of an establishment at which there are no trade unions may bargain collectively with an employer, provided that they are represented by an external trade union organisation18. This means that they will be a party to a dispute in a material sense. Also in this case, the re-spective laws do not specify the number of workers required for the workers’ col-lectivity to be considered representative. In such case a trade union organisation to which the group of interested workers filed a request for representation in the collective dispute should assess whether it is reasonable and appropriate to initi-ate such dispute.

As regards the employer in the collective disputes, it is similarly possible to differentiate, under Art. 1 and 2 (2) of the Act on resolution of collective dis-putes, between a party in a material sense and a party in a formal sense. Under Art. 5 of the said act, a party in a material sense means any organisational unit, even this without a legal personality and natural persons employing workers19.

17 See: B. Cudowski, Reprezentacja zatrudnionych w sporach zbiorowych pracy (de lege lata i de lege ferenda) [Representation of workers in collective labour disputes (de lege lata and de lege ferenda)], [in:] A. Wypych-Żywicka, M. Tomaszewska, J. Stelina (eds), Zbiorowe prawo pracy w XXI wieku [Col-lective labour law in the 21st century], Gdańsk 2010, p. 245 ff.

18 See: K.W. Baran, Zbiorowe… [Collective...], p. 261.19 More on the concept of the employer in the Act on resolution of collective disputes, see in

particular: B. Cudowski, Spory... [Collective disputes...], p. 76–85.

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On the other hand, a status of a party in a formal sense is granted to employers’ organisations20. However, unlike in the case of workers, the latter is an optional representation. This follows from a literal interpretation of Art. 2 (2) of the Act on resolution of collective disputes. In the practice of industrial relations a situ-ation may occur where a party to a collective dispute in a material sense will be several employers. That will be the case where in a supra-company dispute the demands of trade unions relate to rights or interests which are common to the employers concerned. In such event they can bargain collectively within common organisational structures21.

An inherent characteristic of collective labour disputes, in particular on the workers’ part, is multiplicity of actors in a material sense. However, the problem is that sometimes this occurs also in individual disputes, which in practice caus-es delimitation difficulties. A normative recognition of such a situation in the Code of Civil Procedure is a construct of joint participation in the proceedings (współuczestnictwo procesowe) where there are several plaintiffs or several de-fendants in the judicial process. This is a consequence of a substantive legal bond between each of the joint participants and the opposite party. However, in the labour relations a predominant construct is a formal joint participation in the proceedings based on homogeneity of claims and similarity of the factual basis. For example, this is the case where several or a few dozen of employees pursue claims against their employer for payment of outstanding remuneration for work. In such a situation there are separate proceedings between one defendant and several plaintiffs within one case. Such a mechanism of accumulation of claims (kumulacja roszczeń) is designed mainly to save funds pursuant to the principle of procedural economy. Consequently, even where the workers bring a „joint” action in the labour court, they do not do that as representatives of a collectivity. It is expressly confirmed by Art. 73 of the Code of Civil Procedure (KPC). It pro-vides that each joint participant acts on his own behalf. He is also entitled to in-dependently support the case before court.

The multiplicity of actors in the labour disputes results in delimitation prob-lems which are difficult to overcome; therefore the material (ratione materiae) criterion is used alternatively for the classification of such disputes. The Polish legislative provisions in force define explicitly the subject-matter of both an indi-vidual and a collective labour dispute.

20 More on the status of employers’ organisations: Z. Hajn, Status prawny organizacji praco-dawców [Legal status of employers’ organisations], Warsaw 1999, p. 111–118 and the literature ref-erenced there.

21 W. Masewicz, Zatarg zbiorowy pracy [Collective labour dispute], Bydgoszcz 1994, p. 90.


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As regards individual labour disputes, it seems that Art. 72 KPC is of key importance. It provides that a subject-matter of a dispute before a court – at the substantive legal level – are rights and obligations of the parties. In this context, the jurisprudence of civil procedure has formulated a more general view22 ac-cording to which a subject-matter of judicial proceedings is the „disputed legal relationship”. The specific legal relationships which fall within an individual la-bour dispute category were listed in Art. 476 § 1 KPC on the occasion of defini-tion of a labour law matter concept23. Apart from the matters involving claims arising out of employment relationship and the employment-related claims, it applies also to matters involving claims arising out of other legal relationships to which provisions of labour law apply under separate laws. Consequently, the material scope of individual labour disputes includes also disputes arising from the so-called non-employee employment relationships (niepracownicze stosun-ki zatrudnienia), both civil and administrative ones. In the light of the above, there can be no doubt that as regards the material scope, the individual labour disputes should be classified as disputes concerning interpretation or applica-tion of a legal norm.

As regards the subject-matter of collective labour disputes, according to Art. 1 of the Act on resolution of collective disputes, a collective labour dispute may relate 24 to working conditions, wages or social benefits and trade union rights and freedoms of workers or other groups who enjoy the freedom of association in trade unions25. A starting point for further deliberations is an observation

22 J. Jodłowski, J. Lapierre, T. Misiuk-Jodłowska, Postępowanie cywilne [Civil procedure], Warsaw 1996, p. 234.

23 The individual labour disputes include also matters regarding declaration of existence or non-existence (sprawy o ustalenie stosunku prawnego lub prawa) or creation or modification of a legal relationship or right (sprawy o ukształtowanie stosunku prawnego lub prawa) arising from labour laws. For more see: K.W. Baran, Sądowy... [Judicial...], p. 34.

24 According to Art. 1 of the Act on resolution of collective disputes, the disputes between trade unions and staff management bodies of a state-owned enterprise (organy zarządu załogi przedsiębiorstwa państwowego) cannot be included in this category of conflicts. See in particular: J. Jończyk, Prawo pracy [Labour law], Warsaw 1995, p. 233–243; idem, Konflikty organizacyjne i za-targi zbiorowe w stosunkach pracy [Organisational conflicts and collective disputes in labour relations], PiZS 1982, No. 7, p. 3 ff.

25 For more on the subject-matter of a collective dispute – see in particular: G. Goździewicz, Spory zbiorowe. Strajk [Collective disputes. Strike], Toruń 1991, p. 8–9; H. Lewandowski, Spory... [Disputes...], p. 131–136; B. Cudowski, Spory... [Collective disputes...], p. 33 ff.; W. Masewicz, Ustawa... [The act...], p. 133 ff.; J. Piątkowski, Uprawnienia zakładowej organizacji związkowej [Rights of a workplace trade union organisation], Toruń 1997, p. 122 ff; K.W. Baran, Zbiorowe prawo pracy. Komentarz [Collective labour law. Commentary], Warsaw 2010, p. 390–393; E. Wronikowska, Problemy prawnej regulacji rozwiązywania sporów zbiorowych na tle praktyki [Legal regulations on resolution of collective disputes – practical aspects], [in:] A. Patulski, K. Walczak (eds), Jedność w różnorodności. Studia z zakresu prawa pracy, zabezpieczenia społecznego i polityki społecznej. Księga pamiątkowa dedykowana Pro-

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that according to the Polish labour law – at the objective level – these may be both rights disputes and interests disputes. Such view is supported not only by the material scope of collective disputes set out in the quoted Art. 1 of the act but also by other provisions of collective labour law. I am thinking here in particu-lar of Art. 37 (1) of the Act on trade unions which makes an explicit reference to the employee’s interests as a condition for initiation of a collective dispute. Also Art. 3 (1) and Art. 7 (1) of the Act on resolution of collective disputes makes a di-rect reference to the workers’ interests. On the other hand, Art. 2 of the said act explicitly provides that the subject-matter of a collective dispute may be not only interests but also rights of employees. In the industrial relations, at the functional level, they are usually strictly correlated26. An example illustrating such a situa-tion is a dispute27 where the workers demand, first, compliance by the employer with the obligations laid down in the Act on the company social benefits fund (ustawa o zakładowym funduszu świadczeń socjalnych) (a rights dispute), and sec-ond, they demand payment of interest on the outstanding contributions to the social benefits fund (an interests dispute).

The division between the rights disputes and interests disputes was laid down implicite in Art. 262 § 2 of the Labour Code (KP)28. In paragraph 1 of that pro-vision the legislature pointed out the disputes concerning establishment of new wage and working conditions. The essence of such disputes is a difference of opinions regarding not previously existing rights or obligations29. The literal for-mula of that provision clearly indicates that it regards setting out new wage and working conditions and not these already existing in the labour laws, including in the collective agreements. For that reason, the disputes regarding creation or modification of right (spory o ukształtowanie prawa) may be classified only as interests disputes.

A delimiting norm in the case of labour disputes is Art. 4 (1) of the Act on resolution of collective disputes. According to this provision, a collective dispute cannot be initiated to support individual demands of employees if they can be

fesorowi Wojciechowi Muszalskiemu [Uniformity in diversity. Labour law, social security and social policy studies. Memorial book dedicated to professor Wojciech Muszalski], Warsaw 2009, p. 280–282.

26 This is pointed out by W. Sanetra, Kilka uwag o pojęciu znaczeniu i zróżnicowaniu interesów w prawie pracy [Several remarks on the concept, meaning and diversity of interests in labour law], PiZS 1988, No. 6, p. 4 ff.

27 See a decision of the Social Arbitration Panel (Kolegium Arbitrażu Społecznego – KAS) attached to the Polish Supreme Court (SN) of 17.10.1996 published in OSNAPiUS 1997, No. 10, item 180 with a commentary of B. Cudowski (OSP 1997, No. 6, item 124).

28 As regards the function of this provision, see: K.W. Baran, Sądowy... [Judicial...], p. 134.29 See in particular: S. Mateja, Zatarg zbiorowy a spór indywidualny [Collective dispute versus

individual dispute], Przegląd Prawa Pracy 1938, No. 1, p. 12 and T. Zieliński, Prawo pracy... [Labour Law…], vol. 3, p. 165.


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resolved in a procedure before an authority resolving disputes over employees’ claims. This raises certain questions concerning the interpretation30. In particu-lar, a problem arises in a situation where an individual labour dispute cannot be resolved before a labour court, for example due to procedural reasons. It seems that a literal interpretation of Art. 4 (1) of the said act allows for such a possibil-ity31. However, I personally take the view that teleological considerations plead against legalisation of such collective disputes since this would result in anarchy in workplace relations. Under the democratic rule of law, it seems impossible to accept – at a normative level – a collective labour dispute where the subject-mat-ter of such dispute is, for example, a time-barred claim or a valid and final judg-ment of a labour court.

In the light of the above considerations concerning the individual and collec-tive labour disputes, I think that there are no objective, universal and at the same time reliable delimitation criteria allowing conclusive classification of a dispute arising in the labour relations. A natura rerum, the personal criterion does not satisfactorily fulfil this function. Also the material criterion, because of complex-ity of workplace disputes, is not always sufficiently clear. Recourse to the meth-ods of resolution of disputes also seems inadequate since some of them, such as for example conciliation or mediation, are applicable to resolution of both indi-vidual32 and collective disputes33. Therefore, it seems impossible to indisputably and definitively declare in each particular case whether a conflict concerned is collective or individual. This is an example of a specific normative interference. It results from the fact that disputes in the workplace often have multiple dimen-sions34. In practice, many times it is a decision of the parties, in particular the employees, which determines the procedure for resolution of a dispute and hence

30 See also: B. Skulimowska, Tryb i procedury rozwiązywania zatargów w Polsce na tle porównaw-czym [Procedures for resolution of disputes in Poland – a comparative approach], Warsaw 1992, p. 7.

31 See: K. Kolasiński, Prawo pracy i zabezpieczenia społecznego [Labour law and social security law], Toruń 1999, p. 310.

32 See: K.W. Baran, Ugodowe likwidowanie sporów o roszczenia ze stosunku pracy [Amicable resolution of disputes arising out of employment relationship], Cracow 1992, p. 158 ff.

33 See: K.W. Baran, Model polubownego likwidowania zbiorowych sporów pracy w systemie prawa polskiego [A model of amicable resolution of labour disputes in the Polish legal system], PiZS 1992, No. 3, p. 18 ff; A. Świątkowski, M. Wujczyk, Zgodność polskich przepisów o rozwiązywaniu sporów zbiorowych ze standardami europejskimi [Compliance of Polish laws on resolution of collec-tive disputes with the European standards], [in:] A. Wypych-Żywicka, M. Tomaszewska, J. Stelina (eds), Zbiorowe prawo pracy w XXI wieku [Collective labour law in the 21st century], Gdańsk 2010, p. 275.

34 As rightly pointed out by W. Szubert (Kierunki rozwoju zbiorowego prawa pracy [Directions of development of collective labour law], PiP 1981, No. 6, p. 17), in particular the course and effects of collective disputes are dependent not only on the legal regulation but also on other factors such as the actual system of social relations, the real strength of trade unions, the nature of matters in dispute or even the degree of support from the public.

11

its legal nature. Therefore, in practice a precise delimitation between individual and collective labour disputes may be difficult since such division artificially in-terferes with the „natural” uniformity of the social reality which is subject to the regulation.


12

Chapter 2. Organisation of the system of legal protection in labour disputes

K.W. Baran

§ 1. Models of legal protection in individual labour disputes

1.1. Legal protection bodies and the judiciaryin individual labour disputes

I should start the analysis of legal protection and the judiciary in individual labour disputes with definition of these two concepts. The starting point for fur-ther deliberations will be an observation that these concepts are not identical, neither at the objective nor at the subjective level.

According to a prevailing view1, a legal protection means a sustained and organised activity undertaken for the compliance with law. It means implemen-tation of applicable normative regulations, starting with conciliation and media-tion, through jurisdiction, and ending with legal assistance.

The situation is completely different as regards the concept of the judiciary2. In the jurisprudence this term has different definitions, despite unequivocal col-loquial connotations. In schematic terms, there are three basic approaches: ma-terial, personal and heterogeneous one.

1 See: S. Włodyka, Ustrój organów ochrony prawnej [System of the legal protection bodies], Warsaw 1975, passim.

2 See: K. Lubiński, Pojęcie i zakres wymiaru sprawiedliwości [The concept and scope of the judici-ary], Studia Prawnicze 1987, No. 4, p. 3 ff; M. Mędrala, Funkcja ochronna… [The protective func-tion…], p. 111 and the literature referenced there.

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According to a material approach3, a judiciary means an activity which con-sists in binding resolution of conflicts arising from legal relationships or even any activity which consists in resolution of disputes in compliance with law, on behalf of the state. On the other hand, according to a personal approach4 the judiciary means the activity of courts which consists in concretisation and implementation of legal norms. This is governed by the constitutional provisions5, in particular Art. 175 of the Constitution of the Republic of Poland.

According to a heterogeneous approach, the judiciary means the activity of courts limited to resolution of civil law or criminal law disputes or other disputes if these were referred under law for resolution by the courts. At a more detailed level6 this means an imperative activity of courts which consists in imposition of penalties or resolution of legal conflicts or non-conflicting matters relating to fundamental rights and freedoms of citizens in order to secure compliance with applicable laws.

Despite major differences7 between the above concepts of the judiciary, they have one thing in common. Each of the three presented approaches refers directly (the material and heterogeneous approach) or indirectly (the personal approach) to the jurisdiction as a method of activity of the judiciary. Such standpoint is sup-ported also by the legislation in force. I am thinking here of Art. 2 § 1 of the Law on the system of general courts (prawo o ustroju sądów powszechnych). It provides that the tasks of the judiciary are performed by judges only. Also, the differen-tiation of the status of courts and tribunals introduced by Art. 175 of the Con-stitution of the Republic of Poland is a strong argument in support of this view.

3 See: C. Jackowiak, Zakładowe organy wymiaru sprawiedliwości [Law enforcement bodies in the workplace], Poznań 1965; J. Skupiński, Gwarancje orzekania na tle sporu o pojęcie wymiaru sprawiedliwości [Guarantees of jurisdiction in the context of a dispute over the concept of judiciary], PiP 1972, No. 8–9, p. 89; J. Stelina [in:] K.W. Baran (ed.), Zarys systemu prawa pracy. Część ogólna prawa pracy [An outline of labour law system. General part of labour law.], vol. 1, Warsaw 2010, p. 128 ff.

4 See: K. Korzan, Wykonywanie orzeczeń w sprawach o roszczenia pracowników ze stosunku pracy (Studium teoretyczno-procesowe) [Enforcement of judgements in matters involving employment-related claims (Theoretical and procedural aspects)], Katowice 1985, p. 51–52; T. Ereciński, Aktualne problemy ustroju sądownictwa [Current problems of the judicial system], PiP 1981, No. 5, p. 19.

5 See: A. Wasilewski, Władza sądownicza w Konstytucji Rzeczpospolitej Polskiej [Courts in the Constitution of the Republic of Poland], PiP 1998, No. 7, p. 6–7; P. Sarnecki, Władza sądownicza w Kon-stytucji RP z 2.4.1997 [The court system according to the Constitution of the Republic of Poland of 2.4.1997], Rejent 1997, No. 5 (73), p. 136 ff.

6 K. Lubiński, Pojęcie… [The concept...], p. 27.7 In the jurisprudence there are also opinions according to which in order to discontinue the

disputes over the concept of the „judiciary”, it would be desirable that this term is no longer used. See: H. Suchocka, L. Kański, Zmiany konstytucyjnej regulacji sądownictwa i prokuratury w roku 1989 [Changes in the constitutional regulation of the judicial and prosecution system in 1989], PiP 1991, No. 1, p. 28.


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For methodological reasons, it is necessary to clarify the concept of relations between the judiciary and the legal protection bodies. The starting point for fur-ther deliberations will be an observation that in logical terms there is a relation of inclusion which means that all judicial authorities enjoy the status of legal protection bodies while not all legal protection bodies enjoy the status of judicial authorities. Therefore, in subjective terms, undoubtedly the former is narrower than the latter.

1.2. Models of organisation of legal protectionin individual labour disputes

In discussing the model of organisation8 of legal protection bodies in indi-vidual labour disputes, in the first place attention should be drawn to the model-ling processes9 in the legal studies10. Generally speaking, a model object is pre-sented in a simplified form, leaving aside its characteristics which in view of the research objectives have been considered insignificant at the relevant level of dis-cussion. As a result of application of such methodological measures, the devel-oped model is merely a certain convention adopted by the researcher and there-fore, by nature, it has an element of subjectivism.

The models of organisation of legal protection bodies in individual labour disputes presented in this study are of descriptive and generalizing nature since at the abstract level they are specific, „idealistic” reconstruction of the existing systems of resolution of such disputes. In constructing each model I took into account, on one hand, the normative status, and on the other hand, the mutual organisational and procedural relations between the bodies resolving workplace disputes. Particularly important was their position in the organisational structure as a functionally integrated whole.

The most general division of the legal protection bodies resolving individual labour disputes is a division into public and non-public bodies. The former are established by public authorities under legal provisions, usually legislative ones. On the other hand, the non-public bodies are appointed usually by the parties to an employment relationship, usually with the participation of trade unions and

8 I am thinking here of the attributive meaning of the concept of organization. See: T. Kotarbiński, Traktat o dobrej robocie [Treaty on good job], Wrocław 1973, p. 137.

9 As regards „modelling” processes, see: J. Wróblewski, Sądowe stosowanie prawa [The judicial application of law], Warsaw 1988, p. 34–36.

10 I support a view presented by S. Waltoś (Model postępowania przygotowawczego na tle porównawczym [A model of preparatory proceedings – a comparative study], Warsaw 1968, p. 9) ac-cording to which a model means a set of basic elements of a system that allows it to be distinguished from other systems.

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employers’ organisations under specific sources of labour law (such as collective agreements). In the countries with centuries-long tradition of free-market econ-omy these are sometimes completely private.

The public legal protection bodies established for resolution of individual labour disputes may be divided into state and non-state bodies. The principium divisionis is whether an entity concerned enjoys the status of a state body or not. Such status is not granted to self-regulatory bodies (such as professional associa-tion bodies (organy samorządu zawodowego) or social bodies (such as trade un-ion bodies). One of the characteristics of state bodies is that they exercise juris-diction on behalf of the state as a sovereign.

Below is the general scheme of the legal protection bodies which have juris-diction in individual labour disputes.

According to the above, the structure of the legal protection bodies in indi-vidual labour disputes may be divided into two basic homologous models: court and out-of court. As regards the former, the disputes are resolved by the enti-ties which enjoy the status of a court in a material sense. On the other hand, the out-of-court model means such organisational structure where competences to resolve the labour disputes lie exclusively with the legal protection bodies other than courts. Of course, between those two different mechanisms there are nor-mative systems which establish a third, intermediate model which I call a hetero-geneous model. It should be clarified that in the legal sciences a court in a formal sense means a body which is called court under applicable laws (such as a court of arbitration)11. On the other hand, a court in a material sense means a body which enjoys the status of a court in a formal sense, exercises jurisdiction on be-half of a state-sovereign and provides constitutional and procedural guarantees of fair jurisdiction12.

As regards the heterogeneous model of legal protection system in individual labour disputes, I make an idealistic assumption that the procedure regarding this category of matters is a three-instance procedure and only one body is com-petent to rule at the instance concerned. In such case three basic variants may be selected:

11 See: S. Włodyka, Ustrój… [System…], p. 25.12 See: R. Więckowski, Dopuszczalność drogi sądowej w sprawach cywilnych [Court jurisdiction

in civil-law matters], Cracow 1991, p. 12.


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1st instance 2nd instance 3rd instance

1) out-of-court body court court

2) out-of-court body out-of-court body court

3) out-of-court body court out-of-court body

4) court court out-of-court body

5) court out-of-court body out-of-court body

6) court out-of-court body court

The organisational models presented above are usually a compromise be-tween the idea of right of every employee to a fair trial and the organisational and financial capabilities of public authorities. In the practice of employment relationships of the states of industrial civilisation only the first two variants are available. This is because as a rule the courts have judicial supervision over the jurisdiction of the out-of-court bodies (such as disciplinary bodies13). The op-posite situation should be considered odd and could not be accepted in terms of axiology of the right to a fair trial.

I will analyse the arguments for and against of the court and out-of-court model of legal protection in terms of legality, objectivity and professionalism of the jurisdiction. The three mentioned criteria are the fundamental conditions14 of fair and efficient resolution of disputes in industrial relations. As regards the out-of-court model, in the further analysis I would like to focus on the „workplace” variant as the most extreme, where its specific characteristics are most high-lighted. As regards the judicial model, it is of no relevance whether it is a special courts variant or general courts variant.

According to a widespread opinion15, the out-of-court model of the decid-ing authorities ensures a real impact of employees on the method of resolution of disputes in the workplace. In this context a question arises whether the „real impact” is favourable and what is its nature. There are two possible impacts:

13 Decision of the Court of Appeal in Warsaw of 21.8.2000, III APo 10/00, OSA 2001, No. 2, item 7.

14 See in particular: T. Zieliński, Nowy model rozstrzygania sporów pracy i ubezpieczeń społecznych [A new model of resolution of labour disputes and social insurance disputes], PiP 1986, No. 2, p. 47–48; A. Patulski, Sprawność systemu rozpoznawania sporów pracowniczych (kierunki rozwiązań prawno-organizacyjnych) [Efficiency of the dispute resolution system in labour matters (legal and organisational mechanisms)], NP 1982, No. 11–12, p. 50–51.

15 See for example: J. Jończyk, Projekt zmiany kodeksu pracy [Draft amendment to the Labour Code], PiZS 1981, No. 7, p. 20–21.

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„procedural” and „non-procedural” one. It can be taken for granted that the for-mer is favourable in terms of the standard of jurisdiction since the employees – members of a workplace legal protection body know best what is happening at the place where the dispute arose. Undoubtedly, this is a great advantage of the company model of resolution of individual labour disputes. However, it is worth noting that the same may apply to court if lay judges take part in the proceedings. The advantage of such mechanism over the „inter-company” mechanism is that the lay judges are not at all interested in the outcome of the dispute since a judg-ment issued in the case does not affect their job. Therefore, it undoubtedly serves to ensure the impartiality of the jurisdiction and makes it more objective, and specifically it serves to avoid the personal bias to the parties in a dispute heard.

Participation of lay judges reduces the dangers of „cruel” jurisdiction by pro-fessional judges in employment matters. In the past it was often pointed out16 that the judges did not sufficiently understand the specifics of individual labour dis-putes, and they therefore tended to apply the same measure to the situation of the worker and the situation of the employer. I think that a panacea for this problem of the judicial model of legal protection is a professional specialization of judges targeted exclusively at labour law matters.

As regards the „non-procedural” influence of employees on the jurisdiction of the workplace deciding bodies, I think that it is not only illegal but also highly detrimental to the objectivity of the jurisdiction. In this respect the courts – re-gardless of their status, whether of special or general jurisdiction – clearly domi-nate the workplace bodies. This is because they are outside the structure of an establishment and therefore the threat of influence by the parties involved in the dispute on independent17 judges and lay judges seems marginal. This is particu-larly important in the free market economy where the private sector plays a dom-inant role. It is easy to imagine how difficult it would be for a jurisdiction body operating in a private enterprise to remain objective if the members of such body were employees of that enterprise. Undoubtedly, they would be exposed to vari-

16 See for example: S. Rychliński, Wybór pism [Selection of documents], Warsaw 1976, p. 33; J. Wengierow, O sądach pracy w Polsce i zagranicą [Labour courts in Poland and abroad], Warsaw 1929, p. 30; T.J. Kotliński, O ustroju i organizacji sądów pracy – w osiemdziesiątą rocznicę ich powstania [The system and organisation of labour courts – on their 80th anniversary], Palestra 2008, No. 3–4, p. 25 et seq.

17 See in particular: J. Mokry, Osobowość sędziego a niezawisłość sędziowska [The judge and his independence], [in:] M. Jędrzejewska, T. Ereciński (eds), Studia z prawa postępowania cywilnego. Księga pamiątkowa ku czci Z. Resicha [Studies on civil procedural law. Memorial book for Z. Resich], Warsaw 1985, p. 211 ff.; K. Korzan, Niezawisłość sędziowska (sądów) w systemie trzeciej władzy [Inde-pendence of judges (courts) in a system of third power], [in:] B. Czech (ed.), Filozofia prawa a tworzenie i stosowanie prawa [Philosophy of law and law-making and implementation process], Katowice 1992, p. 421 ff.; M. Mędrala, Funkcja… [The protective function...], p. 117 ff.


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ous pressure or even harassment from their employer and even if they did not succumb to that, still they might be demagogically accused by their colleagues of the opportunism to the employer. A similar mechanism may also have an oppo-site effect and result in unfounded accusations of favouring one’s own interests or interests of the collectivity of workers. For these reasons I believe that the model of workplace legal protection bodies in the privatised economy may to a greater extent fuel the individual conflicts instead of mitigating them.

However, the above should not lead to a conclusion that I am opposed to any workplace legal protection bodies. I consider it useful when individual disputes in the workplace can optionally be resolved through mediation or conciliation by non-judicial bodies. Well functioning company mediation or conciliation bodies can play a constructive role in mitigating the conflicts in the workplace. Impor-tantly, the irenic resolution of a dispute usually prevents its escalation in court and therefore reduces the extensive juridisation of labour relations. This is im-portant because sociological research18 has shown that there is an apparent re-luctance on the part of employees to go to court to resolve a dispute with an em-ployer. This tendency is even more visible with the increase of unemployment rates. Therefore, from a social point of view the most favourable solution of an individual labour conflict is a situation where employees use the „services” of a court only as the last resort where all other methods of resolution of a dispute in accordance with out-of-court irenic procedures fail.

In this context significantly important is the access of an employee to a le-gal protection body. Undoubtedly, that is where the workplace bodies have an advantage because of the place of their functioning. Naturally, an employee will have more difficulties to bring his claim to court since the court operates outside the place of his employment. However, there are legislative mechanisms which serve reduction of such objective obstacle. I am thinking here of certain proce-dural mechanisms, in particular an alternative territorial jurisdiction (właściwość przemienna) and exemption from court fees19. Their availability in the procedural labour law restricts or, in some cases, significantly removes the barriers which block employees’ access to courts20.

18 See: M. Borucka-Arctowa, Aktualne problemy przeciążenia sądów (aspekty socjologiczne) [Overloading of courts – the current problems (sociological aspects)], Studia Prawnicze 1988, No. 4, p. 41–45.

19 A mechanism which is unknown in Poland and which facilitates access to court is an insurance covering the costs of court proceedings and attorney fees (for example Rechtsschutzversicherung).

20 On the other hand, too easy access to court for employees may adversely affect the quality of jurisdiction in individual labour disputes. See more in: M. Borucka-Arctowa, Aktualne… [Overload-ing...], p. 45–46.

19

In characterising the models of legal protection, some attention should be given to evidence. In the past, there was a view according to which the work-place bodies had better opportunities to properly establish facts of the case be-cause they functioned at the place where the conflict arose. I do not share this opinion because I think that judicial authorities are better prepared to properly establish the facts of a case21 since they have a number of procedural instruments, including state coercion measures, for determination of objective truth. Moreo-ver, account should be taken of the fact that members of the out-of-court bodies, in particular company bodies, which perform their functions on a voluntary ba-sis, often do not have sufficient knowledge or experience required to conduct the evidentiary procedure. In this respect the professional judges hearing the cases in courts dominate the former.

Referring to this aspect, I have raised a broader problem that is a professional-ism of jurisdiction in individual labour disputes. The deficiencies existing in this area of jurisdiction directly affect its objectivity and legality. In discussing this is-sue it should be kept in mind that individual labour disputes are often very com-plex matters, both in terms of facts and law. Members of the out-of-court bodies do not have sufficient legal knowledge of labour law, in particular where hearing the cases is their additional job performed on a voluntary basis – and this is the situation usually when they sit in the company bodies. In my opinion this is an-other important argument in favour of the court model22. There is no doubt that the judiciary is the area which requires professionalism and cannot be based sole-ly on the good will of the members of the deciding bodies. In this respect a nec-essary element is expertise based on sound legal knowledge. In practice this may be guaranteed only by judges specialising in the labour and employment matters.

Supporters of the out-of-court model of legal protection in individual labour disputes often raise an argument that court proceedings are too complicated for an employee. In opposition they point out the company procedures which are based on the simplest mechanism. I personally support the view23 that the sim-plicity should not be above the merits. The core values on which accurate juris-diction should be based include professionalism, legality and objectivity. There-fore, if simplification of the procedure undermines – even indirectly – one of these factors, then such procedure is unacceptable in a democratic rule of law. Of course, no one can reasonably deny that in the court proceedings there are far more procedural nuances than in the workplace procedure. However, there are

21 See also: A. Patulski, Sprawność… [Efficiency...], p. 56.22 J. Jończyk warned against overestimating the role of an employee in resolving individual labour

disputes – Projekt… [Draft...], p. 20–21.23 T. Zieliński, Nowy… [A new…], p. 49–50, footnote 31.


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mechanisms in place which prevent the risk of damage on the part of the employ-ee resulting from ignorance of procedural laws. In particular, I am thinking here of the obligation of the court to inform the latter of the procedural consequences of his actions or omissions24. Moreover, the entitlement to have the assistance of a lawyer in the judicial proceedings seems to be the factor which significantly re-duces the threat of violation of the rights and interests of an employee. It is also worth noting that in the past there were cases where in the in-company proceed-ings an employee could not be represented by a lawyer while an employer was represented by a qualified professional lawyer. Such asymmetry seriously under-mined the principle of equality of the parties to a labour dispute and often dis-torted the outcome of the process.

The accusation often made against the judicial model is that the proceed-ings conducted by the courts tend to be lengthy and often last very long. This argument is partly justified. However, it is worth bearing in mind that in many countries the courts hearing the labour law matters follow the principle of speed of process and reduced formalism. Both of these procedural directives signifi-cantly reduce the lengthiness of the „traditional” civil procedure in civil matters in a strict sense. This leads to a remark that in practice also the extrajudicial bod-ies are not free from certain bureaucratic drawbacks25 which result in excessive duration of the proceedings.

A sine ira et studio analysis clearly turns the scales in favour of the judicial model of legal protection as a mechanism which better ensures professional and objective resolution of individual labour disputes. In this context a question arises whether it is justified in organisational terms to separate26 the labour courts from the structures of the general courts. A key argument in support of this idea is the need to develop a specific style of jurisdiction in resolution of individual labour disputes, adjusted to the specific nature of the work environment. Also, a sub-

24 See Art. 5 of the Code of Civil Procedure (KPC); See also: M. Sawczuk, Niezawisłość sędziowska a granice pomocy stronie [Judicial independence and the limits of assistance provided to a party], [in:] K. Korzan (ed.), Studia z procesu cywilnego [Civil procedure studies], Katowice 1986, p. 40.

25 See: M. Piekarski, Rozpoznawanie przez sądy spraw z zakresu ubezpieczeń społecznych [Court jurisdiction in social insurance matters], Palestra 1985, No. 7–8, p. 3.

26 See in particular: S. Dalka, Idea jednolitego sądu w sprawach cywilnych [The idea of uniform court in civil matters], [in:] M. Jędrzejewska, T. Ereciński (eds), Studia z prawa postępowania cywilnego – Księga ku czci Z. Resicha [Studies on civil procedural law – Memorial book for Z. Resich], Warsaw 1985, p. 70–71; K. Korzan, Znaczenie jedności postępowania cywilnego dla gwarancji praworządności [The importance of the unity of civil proceedings for the guarantee of the rule of law], PiP 1981, No. 6, p. 64–65; G. Bieniek, Sądownictwo pracy – propozycje modelowe [Labour courts – proposed models], NP 1981, No. 10–12, p. 3–10; W. Siedlecki, O zmianie systemu rozstrzygania sporów o roszczenia pracownicze ze stosunku pracy [Change of the system of resolution of employment disputes], NP 1981, No. 4, p. 74.

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stantive complexity of such disputes27 justifies the necessity to ensure the high level of professionalism among judges, based not only on the knowledge of labour legislation but also on the knowledge of reality of industrial relations. In prac-tice, achievement of these objectives seems easier in the special courts and not in the general courts and this is because of the fact that in the specialized courts the cases are heard by separate judicial corps which are not subject to staff fluc-tuations. In the organizationally integrated general court there is always a risk that the judges will be moved from one organisational unit (division, chamber) to another. This does not help the professional specialization and poses a threat of transposition to the labour court of the style of jurisdiction characteristic of civil matters.

However, on the other hand it is worth noting that also the model of gener-al courts in individual labour disputes has certain advantages. It guarantees the necessary uniformity28, stability and versatility of the jurisprudence29. An instru-ment serving that purpose is a uniform court procedure. At the functional level it is also important that the existence of special courts makes access to the legal protection more complicated as it creates uncertainty as to the scope of jurisdic-tion of particular deciding bodies. Moreover, an advantage of any consolidation is that it reduces costs of operation of the entire justice system which is not with-out importance given the permanent budgetary deficit in Poland and the result-ing crisis of public finances adversely affecting also the judiciary.

The arguments mentioned above to a large extent seem to be reasonable. However, I think that the place of the courts hearing individual labour disputes in the structure of the judiciary is, as a matter of fact, of secondary importance. I assume that their organisational status in the structure of the judiciary does not significantly affect the level of professionalism of judges or, all the more, the pro-fessionalism of their jurisdiction. I think that the necessity to guarantee profes-sionalism of jurisdiction in individual labour disputes does not necessarily have to determine the structural organisation of the judiciary as it seems that the pro-fessionalism is mainly a matter of specialization of judges in labour law. There-fore, I believe that in every court hearing such cases, regardless of whether it is a general or a special court, it is highly useful to introduce mechanisms promot-ing professional specialization in the labour law matters. Undoubtedly, in a labour

27 See: J. Wengierow, O sądach… [Labour…], p. 30.28 As rightly pointed out by A. Murzynowski and T. Zieliński (Ustrój wymiaru sprawiedliwości

w przyszłej konstytucji [The system of the judiciary in the future constitution], PiP 1992, No. 9, p. 8) the unity of the judiciary should be understood to mean „(…) a unity of fundamental substantive principles of the judicial system and of the proceedings before courts and not a bureaucratic uniform-ity of judicial structures”.

29 See: T. Ereciński, Aktualne… [Current ...], p. 21–23; S. Dalka, Idea… [The idea...], p. 70–72.


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court separated from the structure of general courts and focused exclusively on individual labour disputes such task is easier to tackle. However, it seems that also in a general court it is possible to create conditions for specialization of judges through introduction of appropriate organizational and systemic instruments.

1.3. Models of organisation of legal protectionin individual labour disputes in the Polish legislationFollowing the presentation of abstract theoretical models of organization of

legal protection in individual labour disputes it is necessary to describe the legal mechanisms applicable in the Polish legislative system. The starting point for fur-ther deliberations will be an observation that starting from 1918 until the Third Polish Republic there existed a mosaic of various models, including a court mod-el, a heterogeneous model and an out-of-court model.

During the Second Polish Republic the jurisdiction in individual labour dis-putes lied with the courts. Initially these were general courts and industrial and trade courts30. The labour courts were established on 22.3.1928 under a regu-lation of the President of the Republic of Poland31. These were special courts32 which heard „labour cases” in the first instance. Their formal and organisational status was not uniform. There were two types of organization: independent la-bour courts and labour courts attached to the municipal courts. In the former case, the territorial jurisdiction of the courts covered a territory of a munici-pality or a part of municipality; in the latter case the territorial jurisdiction was the same as the area of jurisdiction of a municipal court. The most serious de-ficiency in the structure of the judiciary during the entire interwar period was a small number of courts. Their competence did not cover the whole territory of the country33. Despite theat fact that in 1936 their jurisdiction was extended to include the lands of former Prussian Partition34, they could not be considered

30 See: A.M. Świątkowski, Kontynuacja i zmiana instytucji indywidualnego prawa pracy w Polsce [Continuance and change of individual labour law institutions in Poland], Studia z zakresu prawa pracy i polityki społecznej [Labour law and social policy studies], Cracow 1999–2000, No. 5, p. 136–137.

31 Journal of Laws [Dz.U.] of 1928, No. 37, item 350.32 As regards the status of these courts, see: J. Wengierow, O sądach… [Labour…], passim; J. Gut-

man, M. Gutman, Nowe prawo o sądach pracy [The new law on the labour courts], Cracow 1935, passim; T.J. Kotliński, O ustroju… [The system…], passim.

33 A regulation of the President of the Republic of Poland of 24.10.1934 – law on the labour courts (prawo o sądach pracy) (Journal of Laws [Dz.U.] of 1934, No. 95, item 854) was a basis for a major reform of labour courts. See: J. Wengierow, Reorganizacja sądownictwa pracy w Polsce [Reorganisation of labour courts in Poland], Praca i Opieka Socjalna 1934, No. 3, p. 277 ff.

34 See more in: J. Wengierow, Unifikacja sądownictwa pracy na obszarze całego państwa [Nation-wide unification of labour courts], Praca i Opieka Socjalna 1936, No. 4, p. 377–378.

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generally accessible courts35. However, in the areas where they functioned, the la-bour courts played a crucial role in promoting respect for the labour legislation.

The parties had access to appropriate remedies against decisions of labour courts. Such remedies were heard by the courts of general jurisdiction. An appeal (apelacja) was heard by a regional court (sąd okręgowy) composed of either three judges or a professional judge as a presiding judge and two lay judges. In cases where a matter in dispute was of greater value, the parties were entitled to lodge a cassation appeal (skarga kasacyjna) to the Supreme Court (Sąd Najwyższy).

Considering the above, it seems reasonable to conclude that in the interwar Poland, in individual labour disputes there applied a heterogeneous model of the judiciary. It seems that this structure was an improved version of a French model.

After the end of the World War II, labour courts resumed their activity under the provisions of the law of 1934. However, in 1950 they were liquidated as part of the „socialist” reform of the civil procedure36. A jurisdiction in employment matters was granted to the courts of general competence37. Therefore, formally in the years 1950–1954 in the Polish legislative system there applied the 5th vari-ant of the court model.

Liquidation of the labour courts was accompanied by establishment of ex-trajudicial legal protection bodies. In 1951, under a resolution of the Presidium of the Government (Prezydium Rządu), in certain large state-owned enterpris-es38 the so-called works conciliation commissions (zakładowe komisje rozjemcze) were established. Further, under a decree of 24.2.1954, the commissions were cre-ated in other establishments.

In the 50s, in the Polish legislative system, a predominant model of resolu-tion of individual labour disputes was a trade-union model based on the Len-inism-Stalinism ideas, in particular an idea of withering away of the state in the industry. However, with the process of de-Stalinization, the model gradually evolved towards submission of jurisdiction of the conciliation commissions to judicial control. The first step was the adoption in 1962 of the Act on the Supreme

35 See: M. Święcicki, Instytucje polskiego prawa pracy w latach 1918–1939 [Institutions of the Polish labour law in the years 1918–1939], Warsaw 1960, p. 259 and 262.

36 A decree of 26.10.1950 on the transfer of labour court cases to the jurisdiction of the courts of general competence (Journal of Laws [Dz.U.] of 1950, No. 49, item 446).

37 See: J. Jodłowski, Z zagadnień polskiego procesu cywilnego [Several issues of the Polish civil procedure], Warsaw 1951, p. 47.

38 See a resolution no. 636 of the Presidium of the Government of 5.9.1951 on the temporary establishment of works conciliation commissions in certain industrial plants [uchwała w sprawie tymczasowego powołania w niektórych zakładach przemysłowych zakładowych komisji rozjemczych] (Official Gazette of the Republic of Poland 1951, No. A-87, item 1199). See also: C. Chmielewski, M. Święcicki, Zakładowe komisje rozjemcze [Works conciliation commissions], PiP 1952, No. 4, p. 638.


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Court39 (ustawa o Sądzie Najwyższym) which established a Labour and Social Insurance Chamber (Izba Pracy i Ubezpieczeń Społecznych) in the Court – an organisational unit specialising in resolution of employment matters. Also the Code of Civil Procedure (KPC) adopted in 1964 reinforced the above tendency (in a procedural sphere)40. However, despite the increasing criticism of the model of organisation of legal protection in individual labour disputes, the commission/trade union structure remained unchanged until 1975 when the Labour Code (KP) entered into force.

The reform of the model of legal protection introduced by the Labour Code was a specific compromise between the judicial model and the extrajudicial mod-el. The jurisdiction of trade unions previously applicable in the second instance was replaced by the court jurisdiction. The powers to hear the appeals were taken over by the newly-established regional labour and social insurance courts41. They had a status of special courts and were outside the structure of the general courts. At the same time the provisions of the Labour Code made only minor modifi-cations in the organisation of resolution of labour disputes in the first instance. Still, the main responsibility regarding jurisdiction in those matters lied with the conciliation commissions (komisje rozjemcze)42. Moreover, there were field ap-peal commissions (terenowe komisje odwoławcze do spraw pracy) established for resolution of disputes in labour matters which were particularly complex in legal terms. As regards the deciding panel of the commissions, it was quite unusual since the „social factor” were professional judges employed in the general courts. In practice, such mechanism had very serious drawbacks. On one hand, the fact that a judge sat in the appeal committee caused erosion of his position in court since the judge was not independent in his jurisdiction, and on the other hand he was not a labour law specialist.

Moreover, the mechanism of resolution of individual labour disputes provid-ed for in the Code appeared to be defective, both in terms of objectivity and pro-

39 Journal of Laws [Dz.U.] of 1962, No. 11, item 54.40 See in particular: A. Zieliński, Ochrona roszczeń pracowników w sądowym postępowaniu

cywilnym [Protection of workers’ claims in the judicial civil proceedings], Warsaw 1965, p. 17 ff.41 See the Act of 24.10.1974 on the regional labour and social insurance courts [ustawa

o okręgowych sądach pracy i ubezpieczeń społecznych] (Journal of Laws [Dz.U.] of 1974, No. 39, item 231). For more see: F. Rusek, A. Zieliński, Ustawa o okręgowych sądach pracy i ubezpieczeń społecznych. Komentarz [The Act on regional labour and social insurance courts. Commentary], War-saw 1977, passim.

42 See: A. Filcek, Rozstrzyganie sporów ze stosunku pracy [Resolution of employment disputes], Warsaw 1978, passim; A. Oklejak, Ochrona roszczeń pracownika w postępowaniu przed komisjami rozjemczymi i odwoławczymi do spraw pracy i sądem pracy i ubezpieczeń społecznych [Protection of worker’s rights in the procedure before conciliation and appeal commissions for labour matters and before labour and social insurance courts], ZNUJ 1981, No. 98, p. 58 ff.

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fessionalism of the jurisdiction. Therefore, there were suggestions43 to carry out a thorough reform which were raised following the workers’ protests on the Pol-ish Coast in August 1980. They led to the amendment of the Labour Code (KP) and the Code of Civil Procedure (KPC) of 18.8.1985 under which the jurisdiction in labour law matters was conferred on the labour courts. In the years 1985–1990 it was a three-tier system (district labour court (rejonowy sąd pracy) – voivode-ship labour court (wojewódzki sąd pracy), – the Supreme Court (Sąd Najwyższy). In 1990 the appeal courts were established and this led to a four-level hierarchy. Since July 1996 this has been functioning as a three-instance system based on two ordinary legal remedies: an appeal (apelacja) and a cassation appeal (kasacja).

In analysing, in historical terms, the mechanisms of resolution of individual labour disputes, it should be borne in mind that since 1980 some of their catego-ries regarding employment in public administration were under the responsibil-ity of the Polish Supreme Administrative Court (Naczelny Sąd Administracyjny – NSA). The case-law of that Court – also in the mentioned category of matters – was subject to the judicial supervision of the Supreme Court (Sąd Najwyższy – SN). Following the introduction in the Constitution of the Republic of Poland (Art. 183 (1) and Art. 184) of a separate jurisdiction44 of the Supreme Court (Sąd Najwyższy) and the Supreme Administrative Court (Naczelny Sąd Administra-cyjny) and establishment in January 2004 of two instances45 in the administrative court proceedings,46 in the Polish justice system there now exist two autonomous judicial structures47 having jurisdiction in employment matters.

43 See in particular: W. Siedlecki, O zmianę systemu rozstrzygania sporów o roszczenia ze sto-sunku pracy [Change of the system of resolution of employment disputes], NP 1981, No. 4, p. 74 ff.

44 See: A. Wasilewski, Odrębność sądowej kontroli administracji a problem jedności orzecznictwa sądowego [Separate judicial control of administration and the issue of uniformity of judicial decisions], PiP 1999, No. 2, p. 10.

45 See: Z. Kmieciak, Dwuinstancyjność postępowania administracyjnego wobec reformy sądownictwa administracyjnego [Two-stage administrative procedure and the reform of the system of administrative courts], PiP 1998, No. 5, p. 17 ff.

46 See: J. Woś, Reforma sądownictwa administracyjnego – projekty dalekie od ideału [Reform of administrative courts – projects far from ideal], PiP 2001, No. 7, p. 31–33; R. Hauser, Założenia reformy sądownictwa administracyjnego [Lines of reform of administrative courts], PiP 1999, No. 12, p. 21; W. Czerwiński, Reforma sądownictwa administracyjnego [Reform of administrative courts], Prok. i Pr. 2002, No. 10, p. 90 ff.

47 The deficiencies regarding the uniformity of case-law resulting from such regulation were pointed out by A. Wasilewski, Odrębność… [Separate…], p. 10–11.


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§ 2. Organisational status of conciliation commissions

The conciliation commissions (komisje pojednawcze) are independent, work-place legal protection bodies48, appointed to resolve amicably the disputes re-garding employees’ claims arising out of employment relationship in extrajudicial conciliation procedure (pozasądowe postępowanie pojednawcze). In view of the ap-plicable constitutional provisions, they are not considered judiciary bodies, nei-ther in the personal nor material sense. Their activity is not jurisdictional49 and does not involve the power to expound the law (ius dicere). They are not legally competent to resolve, on a binding basis, the labour disputes submitted to them.

According to Art. 244 § 1 of the Labour Code (KP), the conciliation commis-sions can only make attempts to settle labour disputes50 amicably. Without a stat-utory authorisation their activity cannot transform into resolution of disputes. This is because conciliation involves only non-imperative methods. This means that the decisions taken by the commission in the course of the conciliation pro-cedure are not secured with state coercion.

Members51 of the conciliation commission perform their functions on a vol-untary basis. This means that the mediation activities which they undertake for amicable resolution of a dispute do not fall within the scope of their employment or professional responsibilities. Moreover, they are not required to have legal ed-ucation completed. Importantly, they fulfil their tasks free of charge. However, they retain the right to remuneration for the time not worked as a result of their participation in the work of the commission.

The conciliation commissions do not form any hierarchical structure. The laws governing the extrajudicial conciliation procedure do not provide for any appeal mechanisms. This is perfectly understandable since there are no im-perative decisions regarding rights and obligations of the parties taken in the course of such procedure which would require verification as to the merits. The relations between commissions and courts and other entities functioning in the labour relations are subject to the principle of independence52. In prac-

48 In this context the view presented by A. Świątkowski (Komentarz do kodeksu pracy [Com-mentary to the Labour Code], vol. 2, Cracow 2002, p. 445) seems disputable.

49 They are not quasi-judicial bodies. See: J. Piątkowski, [in:] K.W. Baran (ed.), Kodeks pracy. Komentarz [Labour Code. Commentary], Warsaw 2012, p. 1311–1312.

50 See: K.W. Baran, Status prawny komisji pojednawczych po nowelizacji kodeksu pracy z 2.2.1996 roku [Legal status of conciliation commissions after amendment of the Labour Code of 2.2.1996], Studia z zakresu prawa pracy i polityki społecznej 1997, No. 3, p. 327 ff.

51 See: J. Brol, Sądownictwo pracy I [Labour courts I], PiZS 1985, No. 7, p. 17.52 See: K.W. Baran, Charakter działalności komisji pojednawczych [Characteristics of the activity

of conciliation commissions], PS 1987, No. 7, p. 22–23.

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tice this means that the commissions are autonomous bodies and are not sub-ordinated to the judicial authorities. They do not enjoy the status of employer’s body since they do not perform tasks assigned by the employer. On the contrary, through their activity they correct, in a manner specified by law, the decisions taken by the employer in individual employment matters.

As regards the legal and organizational status of conciliation commissions, their normative relation to the staff at the establishment cannot be overlooked. It seems that personal relations are the most significant aspect. The members of the commission may only be the workers of the organizational unit within which the commission operates. The reason for this is that they best understand the possibilities of amicable resolution of a dispute.

The conciliation commissions may be established in all organisational units which employ workers. This applies also to the entities which are natural persons. These include public and private undertakings, as well as commercial companies, cooperatives and any other organisational structures employing workers. There are no legal obstacles to establishing the conciliation commissions in the local ad-ministration offices or government administration offices. However, in the latter case these might operate only in a limited material scope53.

According to the provisions of Art. 244 § 3 KP, a conciliation commission is appointed jointly by the employer and a workplace trade union organisation. For such appointment to be valid, the employer and the trade union organisation must act jointly. If there is more than one trade union organisation at the estab-lishment, all the trade union organisations are entitled to appoint the commis-sion54. If, however, they do not reach an agreement in this regard, in the context of a literal interpretation of Art. 244 § 3 KP, it is sufficient if only one of them gives consent. Arbitral appointment of the commission by the employer in a situ-ation where there is at least one trade union at the establishment means exceed-ing statutory powers. Eventually, such act should be declared invalid. However, the defective manner of appointment of the commission does not affect the sub-stantive validity of a settlement agreement. Nevertheless, such settlement agree-ment will not constitute enforceable title within the meaning of the provisions of the Code of Civil Procedure.

If there is no trade union organisation at the establishment concerned, the employer may appoint such commission upon obtainment of a positive opin-ion from employees55. The law does not specify the method for obtainment of

53 See Art. 38 of the Act on personnel of public offices (ustawa o pracownikach urzędów państwowych).

54 See: K.W. Baran, Zbiorowe prawo pracy [Collective labour law], Cracow 2002, p. 189.55 See more in: R. Nadskakulski, Związkowa reprezentacja zbiorowych praw i interesów (wybrane

zagadnienia) [Trade union representation of collective rights and interests (selected problems)], [in:]

§ 2. Organisational status of conciliation commissions

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such opinion, therefore it may be obtained in any manner (for example in a staff referendum)56.

Under Art. 245 of the Labour Code (KP) the rules and procedure for the ap-pointment of the commission are determined by the entities who appoint such commission. It is recommended that the parties consult any important organi-sational issues. This applies in particular to the specification of the number of members and the length of the term of office.

The membership capacity, which means a possibility to obtain the status of a member of the conciliation commission, is granted to all employees working at the establishment except those who were excluded under Art. 246 KP57. More specifically, the latter include:– a person managing the work establishment in the name of the employer58, (for

example a director or deputy directors),– chief accountant,– legal counsel (lawyer),– HR and payroll specialist.

Such regulation is derived from the role of such entities in a dispute. In fact it is about ensuring objectivity and impartiality of the commission and therefore avoiding a situation where the members of the commission would be directly in-volved in the conflict. Otherwise the principle of equality of the parties would be violated.

The analysis of Art. 246 KP implies, a contrario, that all other employees can be members of the commission. According to law, there are no qualification cri-teria. Introduction of such criteria is at the discretion of the founders. They may determine the rules of appointment of the commission and specify the conditions to be met by the members of the commission59.

Provisions of the Labour Code (KP) do not regulate expiration of a mandate of a member of the conciliation commission. Therefore, it should be presumed that this may happen in the situations laid down in the internal rules. In practice, this may happen in the event of:

G. Goździewicz (ed.), Reprezentacja praw i interesów pracowniczych [Representation of workers’ rights and interests], Toruń 2001, p. 56.

56 A. Kijowski, [in:] T. Zieliński (ed.), Kodeks pracy. Komentarz [Labour Code. Commentary], Warsaw 2000, p. 1097.

57 See also: J. Skoczyński, [in:] Z. Salwa (ed.), Kodeks pracy. Komentarz [Labour Code. Commen-tary], Warsaw 2000, p. 711–712; J. Piątkowski, [in:] Kodeks… [Labour…], p. 1314–1315.

58 See Art. 128 § 2 (2) KP. See also: T. Duraj, Pojęcie osoby zarządzającej w imieniu pracodawcy zakładem pracy [A concept of a person managing the establishment on behalf of the employer], PiZS 2005, No. 6, p. 19.

59 See: K.W. Baran, Postępowanie przed zakładowymi komisjami pojednawczymi [Proceedings before the works conciliation commissions], PiZS 1986, No. 5–6, p. 59–60.

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– appointment of a new commission,– waiver of membership,– termination of an employment relationship, – dismissal from the commission.

A member of a commission may be dismissed only due to well-founded rea-sons in the situations specified in the internal rules. In no case the cause of the dismissal may be actions undertaken by a member of the commission in order to resolve the existing dispute if such actions were in compliance with law and with the rules of social coexistence (zasady współżycia społecznego).

In the performance of their functions the members of a conciliation commis-sion are independent. The laws in force do not give them any special guarantees such as guarantees in respect of sustainability of employment relationship. This is justified by the nature and objectives of the proceedings. The role of the me-diator does not require special legal protection since the risk of conflict with the employer seems unlikely.

During the first meeting the commission elects its chairman and deputy chairmen from among its members (Art. 247 KP). The right choice is of utmost importance. The efficiency of work of the entire commission will depend on the activity of the chairman.

The duration of the term of office is specified by the bodies appointing the commission. In order to ensure stability, the term of office should not be shorter than two years. In determining the duration of the term of office account should be taken in particular of the needs in respect of proper resolution of individual labour disputes.

Under Art. 258 KP, an employer must provide the commission with appro-priate premises and technical facilities enabling its functioning. The employ-er should also bear other expenses related with the activity of the commission. For example, these include an obligation to pay an employee a compensation for the lost remuneration if the employee participated in the conciliation procedure. This applies not only to the members of the commission but also to all other par-ticipants in the proceedings.

§ 3. Organisational status of labour courtsIn the system of Polish procedural law the term „court” has two meanings60:

procedural/functional and systemic/organisational one. The former is solely

60 See: W. Broniewicz, Sąd rodzinny a sąd opiekuńczy [Family court and guardianship court], PS 1993, No. 2, p. 40 and 42–43, in particular footnote 19; M. Mędrala, Funkcja… [The protective function...], p. 112 ff. and the literature referenced there.

§ 3. Organisational status of labour courts

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a procedural term which refers to the functional characteristics of a court as a body hearing a case referred to it for resolution61. On the other hand, in in-stitutional terms, the court means an organisationally separated judicial enti-ty62. Considering the above, I think that the concept of court has an institutional meaning63.

In the Polish judicial system the labour courts (sądy pracy)64 are organisa-tional units of district courts (sądy rejonowe) (Art. 12 § 1a (2) of the law on the system of general courts), while the labour and social insurance courts (sądy pracy i ubezpieczeń społecznych) are organisational units of regional courts (sądy okręgowe) and courts of appeal (sądy apelacyjne) respectively (Art. 16 § 4a (1) and Art. 18 § 1 (3) of the law on the system of general courts). In organisational terms, they form an integral part of the courts of general competence since they have a status of department or departments of these courts. Their name emphasizes primarily the separate nature of the procedure in labour law matters.

The regulations applicable at the district and regional level are optional which means that the Minister of Justice decides upon the setting up of a labour court. Such mechanism fosters a reasonable distribution of forces and measures in the face of decreasing number of labour law matters.

In analysing the organisational aspects, it is worth noting that at the district and regional level the provisions of the law on the system of general courts intro-duce a flexible organisational structure. There may exist separate departments for labour law matters (Art. 12 (1a)(2) and Art. 16 § 4a (1)) and in the event where very few labour law and social insurance cases arrive in the district or regional courts then one common department for both categories of cases is established instead of two separate departments. Under Art. 18 § 1 (3) of the law on the sys-tem of general courts such mechanism applies, on an exclusive basis, in the courts of appeal.

The labour courts operate within the structure of the general courts. They do not form a separate division but they act in accordance with the rules applicable in all courts of general competence. Therefore, they are subject to administra-tive management65 by a chairman of the district court, regional court or court of

61 In the procedural legislation an example of such meaning of „court” is the term guardianship court, inheritance court, registration court.

62 In the procedural legislation an example of such concept of „court” is the term commercial court, family court.

63 This follows explicitly from Art. 262 § 1 KP.64 See: K. Korzan, Praworządność a zagadnienie jedności postępowania cywilnego z punktu

widzenia stosunku do prawa materialnego [The rule of law and the unity of the civil procedure in terms of relationship to the substantive law], [in:] K. Korzan (ed.), Studia z procesu cywilnego [Studies on the civil procedure], Katowice 1986, p. 28.

65 See Art. 22 of the law on the system of general courts (prawo o ustroju sądów powszechnych).

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appeals respectively. Their separation is only organisational and functional. This means separation from the structure of the courts of general jurisdiction because of the function performed, which is hearing and resolution of labour law matters. There is a view66 presented in the jurisprudence according to which this does not guarantee the genuine constitutional autonomy of the courts.

At this point I would like to emphasize that I support the idea of specialized justice system in labour law matters only in personal terms which means narrow specialization of judges in that category of matters67. I think that the possibility, implied by the provisions of the law on the system of general courts, to entrust a judge assigned to hear labour law matters with hearing also other categories of matters falling within a competence of a general court (criminal, family or com-mercial) is a major departure from this idea. In practice, an authority responsible for assignment of tasks may be tempted to make such personal changes to im-prove the functioning of the entire court in a situation when a number of cases arriving in the labour court is small. In such case also the professional solidarity considerations provide arguments in favour of „adding” extra cases to a judge as-signed to hear cases in the labour court. I am against such approach since in my opinion it is harmful from the perspective of professional specialization of judges hearing labour law matters.

A normative mechanism designed to serve fulfilment of the idea of special-ized judiciary in labour law matters – of course in personal terms – is a statuto-ry68 requirement that the judges hearing the labour and social insurance cases should be familiarized with employment issues and with the purposes of insur-ance and the needs of the insured. De lege lata, the court panels including lay judges in the first instance are authorized to hear the following labour law cases:– declaration of existence of an employment relationship, entry into and expira-

tion of an employment relationship, voidance of termination of an employment relationship, reinstatement of an employee and restoration of the previous wage or working conditions and the related claims and compensation in the case of unreasonable termination of employment or termination of employment in breach of law,

– violation of the principle of equal treatment and the related claims,– compensation for a workplace mobbing (bullying)69.

66 See: T. Zieliński, Nowy… [A new…], p. 50.67 In my opinion the status of a court within the organizational structure of the judiciary does

not directly affect the level of specialization of judges.68 See: Art. 12 § 4 of the law on the system of general courts. See also: K. Korzan, Praworządność…

[The rule…], p. 28–29.69 See: M. Mędrala, Funkcja… [The protective function...], p. 121 ff.


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This list is enumerative therefore, according to the exceptiones non sunt ex-tendendae principle, it cannot be interpreted broadly. Other categories of labour law matters are heard by a labour court composed of one judge. According to the case-law of the Polish Supreme Court70, in labour law matters a court composed of one judge and two lay judges may examine several claims pursued jointly by the plaintiff in one set of proceedings if at least one of these claims should be ex-amined by one judge and two lay judges.

To sum up the deliberations on the legal status of Polish labour courts, I con-clude that these are organizational units, called departments, within the structure of the general courts which enjoy some level of separation. However, in my opin-ion, it is only relative. Such relativity is made manifest primarily at the institution-al and procedural level71. But it is not systemic. Consequently, the Polish labour courts are fully integrated with the structures of general courts. The most remark-able sign of such integration is the fact that they rule just like all other courts in civil matters (in a large sense), in accordance with the provisions of the Code of Civil Procedure (KPC) and not the provisions of a special procedural act, and therefore they may apply the fundamental procedural principles developed over time by the judiciary. This gives better possibilities to protect the personal rights of the parties to labour disputes within the universal procedural framework.

However, in my opinion the main shortcoming of the normative mechanisms applicable de lege lata is a deficiency of statutory guarantees for permanent as-signment of judges to the labour courts. The biggest point of concern is the pos-sibility to move judges, under a decision of court administration bodies, between the departments of one and the same court, both ad hoc for a specific case, as well as due to the permanent change of the assigned duties. In my opinion this seri-ously undermines the idea of professional judiciary in labour law matters. On the other hand, I would like to clearly highlight the fact that this idea is not directly affected by the lack of systemic independence of the labour courts. In my opin-ion the professionalism of the jurisdiction is predominantly a function of spe-cialization of judges in labour law matters and is relatively little dependent on the place of the labour court in the organisational structure of the judicial authorities.

I take a favourable view of the normative mechanism adopted in the Polish legislation in relation to the labour courts because through a specific organiza-tional and personnel compromise it was possible to satisfactorily correlate be-

70 Resolution of the Supreme Court (SN) of 20.3.2009, I PZP 8/08, OSNCP 2009, No. 17–18, item 219. See also a resolution of the Supreme Court (SN) of 4.2.2009, III PZP 14/08, OSNP 2009, No. 17–18, item 218.

71 According to the organizational and personnel characteristics of labour courts, W. Sanetra, (Prawo pracy. Zarys wykładu [Labour law – an outline], vol. I, Białystok 1994, p. 289–290) classified the latter as the bodies governed by labour law.

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tween two seemingly contradictory ideas: organizational uniformity of the ju-risdictional system in the civil matters (in a large sense) and the professional judiciary in the labour law matters.

In the Polish judiciary significantly important is also the role of the Supreme Court (Sąd Najwyższy, SN). In analysing the organizational structure of bodies established for resolution of labour law matters, the Polish Supreme Court must also be taken into account.

According to Art. 183 of the Constitution of the Republic of Poland, the Su-preme Court72 shall exercise supervision over the judgments of the courts of general competence. This provision – lege non distinquente – applies also to all labour courts and labour and social insurance courts hearing labour law matters. Therefore, the Polish Supreme Court, although at the organisational level it is ex-cluded from the structure73 of the general courts74, at the functional level it is the last75 link in the chain of labour courts in a broad sense.

To continue on the organisational issues, attention should be given to the in-ternal organisational structure of the courts of the highest instance. This may in-volve various mechanisms. A court of „the highest instance” may hear individual labour disputes either within a separated organisational unit competent to resolve such matters only or within an organisational unit which has jurisdiction also in other categories of matters (such as civil or insurance matters). In 1962, a Cham-ber of Labour and Social Insurance (Izba Pracy i Ubezpieczeń Społecznych)76 was created within the Supreme Court77. Earlier, during the interwar78 and the post-

72 See: J. Sobczak, [in:] W. Skrzydło (ed.), Polskie prawo konstytucyjne [Polish constitutional law], Lublin 2000, p. 382.

73 In some of the European countries the courts of last resort hearing individual labour disputes are, from organizational point of view, an integral part of the entire structure of the labour courts, outside the framework of the general courts. An example of such organisational structure is German Bundesarbeitsrecht.

74 According to the provisions of Art. 1 § 1 of a regulation of the President of the Republic of Po-land of 6.2.1928 – Law on the system of general courts (prawo o ustroju sądów powszechnych) (Journal of Laws [Dz.U.] of 1932, No. 102, item 863), the Supreme Court, together with district courts, regional courts and courts of appeal, belonged to the structure of the general courts.

75 As regards the appeal mechanisms available in the labour courts, see in particular: M. Mędrala, Funkcja… [The protective function...], p. 259 ff. and the case-law referenced there.

76 See Art. 9 of the Act of 15.2.1962 on the Supreme Court (ustawa o Sądzie Najwyższym) (Journal of Laws [Dz.U.] of 1962, No. 11, item 54). See the Act of 24.10.1974 on the regional labour and social insurance courts [ustawa o okręgowych sądach pracy i ubezpieczeń społecznych] (Journal of Laws [Dz.U.] of 1974, No. 39, item 231).

77 See: F. Rusek, Piętnastolecie Izby Pracy i Ubezpieczeń Społecznych Sądu Najwyższego [Fifteenth anniversary of the Chamber of Labour and Social Insurance of the Supreme Court], NP 1978, No. 1, p. 3–9; W. Berutowicz, Ewolucja funkcji Sądu Najwyższego w Polsce Ludowej [Evolution of functions of the Supreme Court in the Polish People’s Republic], NP 1985, No. 5, p. 9.

78 See Art. 36 of the law on the system of general courts of 6.2.1928.


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war period, the matters (as called by the then courts) arising out of employment relationship – were heard by the Civil Chamber of the Supreme Court. De lege lata, in the Supreme Court there is a Chamber of Labour, Insurance and Public Affairs79 which, by hearing cassation appeals and other remedies and by adop-tion of resolutions on legal issues, exercises overall judicial supervision over ju-risdiction in labour law matters.

79 See Art. 3 (1)(3) in connection with Art. 1 (1a) and (1b) of the Act of 23.11.2002 on the Supreme Court (Journal of Laws [Dz.U.] of 2002, No. 240, item 2052).

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Chapter 3. Right to a fair trial in individual labour disputes


K.W. Baran

The right to a fair trial is one of the fundamental guarantees of civil freedoms in a democratic state. The universal recognition of that right by civilized soci-eties was reflected in a number of international instruments. Given the excep-tional significance of those regulations for a domestic normative order, I should focus on the International Covenant on Civil and Political Rights1 including the Optional Protocols and the European Convention for the Protection of Human Rights and Fundamental Freedoms2.

Article 14 (1) of the Covenant provides that everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal estab-lished by law regarding the rights and obligations in civil matters. Similar, howev-er not identical provision, is included in Art. 6 (1) of the Convention. It provides that in the determination of his civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and im-partial tribunal established by law.

Therefore, the personal scope of Art. 14 (1) of the Covenant and Art. 6 (1) of the Convention is very broad since everyone, thus also the parties to an em-ployment relationship, is entitled to benefit from the judicial protection. As re-gards the material scope, the situation is different. The material scope of the two provisions is reduced to criminal and civil matters. Therefore, a question arises whether labour law matters fall within the civil matters category. In this respect the case-law of the European Court of Human Rights is of key impor-tance. The main focus is put on the substantive context of a dispute, in particu-

1 Journal of Laws [Dz.U.] of 1977, No. 38, item 167. See also: M. Mędrala, Funkcja ochronna… [The protective function…], p. 47 ff.

2 Journal of Laws [Dz.U.] of 1993, No. 1, item 281.

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lar the obligative3 nature of the legal relationship between the parties. The es-sence of the dispute is that the claim pursued is pecuniary or it follows from violation of pecuniary rights4. It seems that such mechanism is characteristic of any labour law matters arising from contractual employment relationships. According to the case-law of the European Court of Human Rights, Art. 6 (1) of the Convention applies to the disputes arising out of a contractual employment relationship even in the public service5, to conflicts that have arisen in connec-tion with suspension or dismissal6, admission to profession7 and to compensa-tion in respect of accidents at work8. The application of that provision is condi-tional upon existence of the real and significant rights dispute concerning the right recognized by the national law, even if such recognition has been a subject of controversy9.

According to the case-law of the European Court of Human Rights, the right to a fair trial is not an absolute right and may be subject to restrictions10. As re-gards labour relations, this applies in particular to conflicts arising from public service employment11. Therefore, the guarantees laid down in Art. 6 of the Con-vention do not apply to disputes regarding employment of judges12 and officers of military forces (such as professional soldiers13). In this context worth noting is a standpoint14 presented by the European Court of Human Rights according to which in a democratic society the right to a fair trial is of such significance that

3 See for example a decision of 10.4.1991 in 15058/85 Darnell v. the United Kingdom (see: M.A. Nowicki, Europejska Komisja Praw Człowieka. Wybór orzecznictwa [The European Com-mission of Human Rights. A selection of case-law], Warsaw 1998, p. 131, item 608).

4 See a ruling of 26.3.1992 in 12472/92 in Editions v. France (see: M.A. Nowicki, Europejska... [The European…], p. 111, item 503).

5 See a decision of 16.5.1990 in 12766/87 – Tinelli v. France (see: M.A. Nowicki, Europejska... [The European…], p. 130, item 609).

6 See a decision of 5.12.1984 in 10027/82 – Gudez v. Belgium (see: M.A. Nowicki, Europejska... [The European…], p. 120, item 565).

7 See a decision of 30.11.1994 in 22842/93 – Waygard v. Poland (Lex No. 40874).8 See a decision of 3.7.1989 in 10659/83 – Lo Giacco v. Italy (see: M.A. Nowicki, Europejska...

[The European…], p. 123, item 583).9 See a decision of 14.6.2001 in 45004/98 – Stańczuk v. Poland (Lex No. 48022).10 See a decision of 16.10.2001 in 52039/99 – Zieliński v. Poland (Lex No. 49830) and a decision

of 17.1.1997 in 28250/95 – Dobranowski v. Poland (Lex No. 40999).11 See a decision of 10.10.1983 in 9248/81 – Leander v. Sweden (see: M.A. Nowicki, Europejska...

[The European…], p. 128, item 604).12 See argument 2 of a decision of 12.10.1994 in 24413/94, Januszewska v. Poland (Lex No. 40873).

An exception to this rule are disputes regarding retirement of judges (ruling of 26.11.1992, G. Lom-bardo v. Italy (see: M.A. Nowicki, Europejska... [The European…], p. 119, item 554).

13 See a decision of 11.7.2000 in 31439/96, Kępka v. Poland, www.echr.coe.int.14 See: M.A. Nowicki, Wokół Konwencji Europejskich [Comments on the European Conventions],

Warsaw 1992, p. 41.

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any narrow interpretation of Art. 6 (1) of the Convention would not correspond to the purpose or nature of that article.

In the Polish legislative system the right to a fair trial is laid down in the con-stitutional provisions. According to Art. 45 (1) of the Constitution of the Re-public of Poland, everyone shall have the right to a fair and public hearing of his case, without undue delay, before a competent, impartial and independent court. Art. 77 (2) of the Constitution provides that laws shall not bar the recourse by any person to the courts in pursuit of claims alleging infringement of freedoms or rights. The regulation adopted in the provisions mentioned above refers both to the procedural and organisational aspect (Art. 45 (1)) and to the functional and jurisdictional aspect (Art. 77 (2)).

At the personal level, neither Art. 45 (1) nor Art. 77 (2) of the Constitution limits the right to a fair trial. Both of these provisions lay down the universal rights. The first one uses the term „everyone” and the second one uses the term „no one”. In the labour relations this means that the right to a fair trial applies, to the same extent, to workers and employers and to other actors in industrial relations (such as trade unions, employers’ organisations). Such interpretation is justified by a completudine and a cohaerentia argumentation.

There are also no restrictions at the material15 level. Under Art. 45 (1) of the Constitution the right to a fair trial is granted – lege non distinquente – in any matters, also in labour law matters. Also, no differentiation criteria were intro-duced in Art. 77 (2) of the Polish Constitution. In this context, it is evident that the court proceedings are available for the protection of freedoms and rights violated in connection with employment. In this context the normative mecha-nisms adopted in the Polish Constitution are more favourable than the regula-tion adopted in Art. 6 (1) of the Convention since they do not make it necessary to distinguish between the contractual employment relationship (stosunek pracy o charakterze obligacyjnym) and employment in the public service (zatrudnienie w służbie cywilnej). Therefore, the Polish legislative system provides for the possi-bility to apply the judicial control mechanisms each time when the infringement of law is claimed. Such procedural mechanism fully corresponds with the idea of democratic rule of law16.

15 See a judgment of the Constitutional Tribunal of 28.7.2004, P 2/04, OTK ZU 2004, No. 7A, item 72. See also: H. Pietrzykowski, Prawo do sądu [The right to a fair trial], PS 1999, No. 11–12, p. 5 ff.; Z. Czeszejko-Sochacki, Prawo do sądu w świetle Konstytucji Rzeczypospolitej Polskiej [The right to a fair trial in the Constitution of the Republic of Poland], PiP 1997, No. 11–12, p. 94.

16 See: M. Wyrzykowski, Legislacja – demokratyczne państwo prawa – radykalne reformy poli-tyczne i gospodarcze [Legislation – democratic rule of law – radical political and economic reforms], PiP 1991, No. 5, p. 20–21.


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In discussing the issue of the right to a fair trial in labour law matters it is worth considering to what extent the extrajudicial procedures diminish the con-stitutional judicial protection in labour relations. Before I go to the merits, for the sake of clarity and accuracy I should first systematise the mentioned procedures. In general, they are divided into extra-judicial and pre-judicial proceedings. Logi-cally, such division seems incorrect since it is not separable. I feel obliged to clar-ify it.

My proposal is that the extra-judicial proceedings in a large sense should in-clude both pre-judicial proceedings (pre-jurisdictional) where a labour dispute, before it is submitted by a party to a court, may be or must be referred for exami-nation, and not necessarily for resolution, to a statutory body other than a court, as well as extra-judicial proceedings in a strict sense where a labour law dispute by law does not fall within a jurisdiction of a court but within a jurisdiction of another statutory body.

I should start the analysis of the extra-judicial proceedings in a large sense in individual labour disputes – in terms of restrictions of the right to a fair tri-al – with the extra-judicial proceedings in a strict sense. The starting point will be an observation that in the category of disputes where the extra-judicial pro-ceedings in a strict sense apply in all instances, the parties are totally deprived of the right to a fair trial. In practice, this means that the disputes between them are resolved by other entities or bodies, with no judicial control. Under the Pol-ish legislation such regulations are unconstitutional since they directly violate the provisions of Art. 45 (1) and Art. 77 (2) of the Polish Constitution. This re-fers in particular to disciplinary proceedings before disciplinary commissions. They are specific quasi-courts without a status of a judicial authority. I have long been supporting a view that the jurisdiction of extra-judicial disciplinary bodies should be subject to judicial supervision of courts. Now I would like to focus on the pre-judicial proceedings. As regards the optional procedures, I think that the normative admissibility of such procedure in individual labour disputes raises no concerns in terms of the right to a fair trial. I take a view that the parties to an employment relationship may each time end the dispute in any conciliation and mediation formula, even an imperative one, provided that this is voluntary and not prohibited by law17. From a constitutional point of view it is important that in the case of failure of that procedure the entitled party is free to seek resolution of the dispute before court18.

17 See for example Art. 697 § 1 of the Code of Civil Procedure (KPC).18 The legal scholars have long postulated that any pre-judicial procedures should be optional.

See in particular: W. Siedlecki, O przewlekłości sądowego postępowania cywilnego [Excessive length of civil procedure], NP 1987, No. 2, p. 6; R. Więckowski, Sądowe dochodzenie roszczeń a postępowania przedsądowe [Enforcement of claims before a court and pre-judicial proceedings], PiP 1990, No. 2, p. 61.

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The situation is different as regards mandatory pre-judicial proceedings. In the context of Art. 45 (1) of the Polish Constitution, the fact that the law pro-vides for an obligation to refer an individual labour dispute first to an internal procedure or even administrative procedure undoubtedly seriously restricts the right to a fair trial. This mechanism is called a conditional jurisdiction. It means that exhaustion of pre-judicial proceedings is a precondition for opening court proceedings. A question arises whether this should be accepted in labour dis-putes. I follow an unorthodox opinion that such procedural mechanism may be approved, provided that a labour court, if the case is referred to it, can hear the entire dispute, with no restrictions. It should be borne in mind that Art. 77 (2) of the Constitution merely lays down a directive according to which access to court cannot be closed and therefore it does not explicitly declare the mandatory pre-judicial proceedings unconstitutional. Such interpretation is justified by a for-tiori argumentation.

At the functional level, such opinion on the mentioned procedures is a result of a compromise between the principle of court-administered justice and the principle of procedural economy. What cannot be disregarded is practical expe-rience in resolution of labour disputes. It proves that any internal extra-judicial optional procedures applicable in the workplace apply only to a small extent19 or even remain a dead letter.

The question remains which of the internal (workplace) procedures are ob-ligatory. As regards these laid down in the Labour Code, they include a procedure for rectification of a certificate of employment (sprostowanie świadectwa pracy) or imposition of penalties for breach of order in the workplace (kary porządkowe). In the former case, according to Art. 97 § 21 of the Labour Code, within 7 days from receipt of the certificate of employment an employee may request recti-fication of that certificate by the employer20. If the request is not granted, the employee may, within 7 days of the notification of the refusal to rectify the cer-tificate of employment, apply to a labour court and demand such rectification. A literal interpretation of that provision, in particular the expression „if the re-quest is not granted” clearly implies the interpretation according to which the previous request filed with the employer is a condition sine qua non for initiation of court proceedings. In all other disputes regarding the certificates of employ-

19 See: K.W. Baran, Komisje pojednawcze w świetle sondażu empirycznego [Conciliation commis-sions in empirical surveys], Problemy Praworządności 1998, No. 12, p. 68–69; J. Bała, Orzecznictwo sądów rejonowych (sądów pracy) oraz sądów wojewódzkich (sądów pracy i ubezpieczeń społecznych) w 1986 r. [Case-law of district courts (labour courts) and voivodeship courts (labour and social insurance courts) in 1986], PiZS 1987, No. 5–6, p. 44.

20 See: M. Włodarczyk, [in:] K.W. Baran (ed.), Kodeks pracy. Komentarz [Labour Code. Com-mentary], Warsaw 2012, p. 648 ff.


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ment (świadectwa pracy) the Labour Code does not provide for the obligation to use the internal (workplace) procedure. This view is based on the per non est in-terpretation directive.

A similar normative mechanism is laid down in Art. 112 § 2 of the Labour Code21. It provides that an employee who filed an opposition to a penalty for breach of order in the workplace (kara porządkowa) may, within 14 days from the notification of rejection of the opposition, apply to a labour court for cancella-tion of the penalty. In practice this means that an employee may bring an action in the labour court only after the internal procedures are exhausted, that is after he has filed an opposition to the employer in due time.

To summarise the impact of the extra-judicial procedures in a large sense on the right to a fair trial in the labour relations, I must say that it is strongly varied. Essentially, the extrajudicial procedures in a strict sense deprive a party of the right to a fair trial – which directly undermines the directives expressed in Art. 45 (1) and Art. 77 (2) of the Constitution of the Republic of Poland. The situation is more complex as regards the mandatory pre-judicial procedures. Undoubtedly, at the functional level, they restrict access to court. However, if they are established by law and the law does not provide for any personal or material restrictions re-garding access to court upon completion of such procedures, then such proce-dures may be considered consistent with the provisions of the Constitution. Only in the case of optional pre-judicial procedures I see no normative mechanisms which would restrict the parties’ access to court.

I would like to emphasize that I am far from orthodox views according to which labour courts should have a monopoly as regards resolution of labour law matters. It is illusory to expect that they will become the only forum for resolu-tion of individual workplace conflicts. My intention is not to diminish the role and possibilities of the out-of-court bodies. In my opinion, a properly organised non-judicial system of legal protection should provide the parties with oppor-tunities to resolve individual labour disputes alternative to the judicial forms of their resolution (the so-called informal justice), in particular at the company level. It is important to bear in mind that informal resolution of a dispute, with no involvement of the entities provided with state coercion measures, strength-ens acceptance of the resolution by the parties. It is important in that they of-ten need to continue cooperation in the context of the employment relation-ship. However, in the case of failure of the out-of-court irenic procedure, a party should each time be guaranteed the possibility to refer a case to a court which,

21 See: A. Kijowski, [in:] T. Zieliński (ed.), Kodeks pracy. Komentarz [Labour Code. Commentary], Warsaw 2000, p. 564–566; W. Perdeus, [in:] K.W. Baran (ed.), Kodeks pracy. Komentarz [Labour Code. Commentary], p. 725 ff.

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at the procedural level, is a condition sine qua non for exercising the right to a fair trial.

In the case of normative restrictions of the right to a fair trial, the situation is different as regards the material restrictions. A ratio legis of such regulations follows from the specific character of cases in which access to court was closed by law. In all instances such disputes are heterogeneous, where the element of obligations or individual22 element is of secondary importance. According to the legislation in force, Art. 262 § 2 of the Labour Code is of key importance as re-gards the material restrictions of the right to a fair trial. Its meaning goes far beyond its literal wording. Generally, the consequence of this provision is in-admissibility of court proceedings while literally it merely restricts the jurisdic-tion of a labour court. The problem is that exclusion of the jurisdiction of la-bour courts results, within the entire justice system, in inadmissibility of court proceedings since a case concerned is either not a civil case in a large sense or such case can be heard in special procedures, other than court proceedings. The above remarks apply only to paragraph 1 and 2 of Art. 262 § 2 KP. Para-graph 3 of that provision plays organising role only and it implicitly provides for the jurisdiction of general civil courts in disputes regarding accommodation in hotels for workers.

As regards inadmissibility of court proceedings in the material sense, I would like to start with disputes specified in paragraph 1 of Art. 262 § 2 KP concerning new wage and working conditions. As a preliminary remark, it must be pointed out that this category of disputes cannot be equated with declaratory actions (re-garding existence or non-existence of a right or a legal relationship). Obviously, the latter, under Art. 189 of the Code of Civil Procedure (KPC), are heard in court proceedings in a strict sense. This applies in a situation when there is a state of uncertainty between the parties to an employment relationship or other substan-tive relationship based on provisions of labour law as regards mutual rights and obligations arising from that relationship. A completely different situation oc-curs in a dispute regarding setting out new wage and working conditions23. The essence of such dispute is a disagreement regarding the rights or obligations not existing in a normative sphere or transformation of the existing ones. Such dis-putes are classified as interest disputes24. In this context worth noting is a correct

22 See: K.W. Baran, Zbiorowe prawo pracy [Collective labour law], Cracow 2002, p. 255 ff.23 See: A Zieliński, Ochrona roszczeń pracowników w sądowym postępowaniu cywilnym [Protec-

tion of workers’ claims in civil court proceedings], Warsaw 1969, p. 18–19; L. Brzozowski, Właściwości organów powołanych do załatwiania sporów z zakresu prawa pracy II [Jurisdiction of bodies appointed to resolve labour disputes II], Sł. Prac. 1989, No. 3, p. 4.

24 See: J. Iwulski, W. Sanetra, Kodeks pracy. Komentarz [Labour Code. Commentary], Warsaw 1996, p. 675.


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standpoint expressed by the Supreme Court in a judgment25 of 19.1.1998, accord-ing to which an action concerning conclusion of a final contract of employment does not have to be considered a dispute concerning new wage and working con-ditions within the meaning of Art. 262 § 2 (1) of the Labour Code since it is a la-bour law matter. If the participants in a dispute regarding setting out new wage and working conditions are solely individuals, then only internal workplace con-ciliation procedures may apply and not court proceedings in a large sense. A spe-cific confirmation of this view is paragraph 3 of Art. 5 of the law on administra-tive court proceedings (prawo o postępowaniu przed sądami administracyjnymi). The article provides that these courts do not have jurisdiction in matters concern-ing refusal to nominate to a position or to appoint to performance of a function in the public administration bodies, unless the obligation to nominate or appoint is prescribed by law.

In the event where a dispute concerning new wage or working condi-tions is a collective dispute, then provisions of the Act on resolution of collec-tive disputes26 (ustawa o rozwiązywaniu sporów zbiorowych) should be applied. The disputes of that category are not civil matters. In the Polish legal system only the rights expressed in the legal norms in a large sense are subject to judi-cial protection.

The second category of labour disputes in which access to court is closed are disputes concerning application of labour standards27. The essence of such dis-putes is that they undermine the rationale for establishment of labour standards or of implementation procedure. In practice, this may involve various situations. For example, the subject-matter of a dispute may be applicable standards if the workers consider them overly tight or the employer considers that the technical and organisational conditions have changed to the extent which justifies increas-ing such standards and the workers demand maintenance of the previous level. Other possible variant of a conflict is diverging opinions of workers and employ-ers as regards the proposed standards. In such event the crux of the problem is the protection against loss of future earnings. All of the mentioned types of dis-putes have one common feature – they question the legitimacy or validity of a la-bour standard.

In the context of provisions of Art. 262 § 2 (2) KP, in the event of such dis-putes a recourse to court proceedings seems unacceptable. However, because of the multiple dimensions of workplace conflicts, in practice there are cases which

25 OSNAPiUS 1998, No. 23, item 686, I PKN 482/97, see also a judgment of the Polish Supreme Court (SN) of 5.5.2009, I PK 279/07, Legalis.

26 See: K.W. Baran, Zbiorowe… [Collective...], p. 252 ff.27 See: A. Kijowski, [in:] T. Zieliński (ed.), Kodeks… [Labour…], p. 1105.

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indirectly refer to the labour standards in which access to labour court is open. I am thinking here of disputes regarding proper application of labour standards in force. Such disputes, because of their obligative nature, fall within the personal and material scope of matters involving claims arising out of employment rela-tionship since they regard the breach of an obligation arising out of a contract of employment. This is a situation where an employee argues that he was not paid remuneration at the appropriate amount as a result of defective application of a labour standard. Similar view was presented by the Supreme Court (SN) which held that28 a claim, raised by an employee who is remunerated according to piece rates, for payment of a remuneration calculated according to labour standards not disputed between the parties, is an ordinary claim for remuneration for work. A similar situation, in procedural terms, occurs where the employer questions the correctness of fulfilment of a labour standard and demands repayment by the employee of a part of the overpaid remuneration. Both of the examples presented above refer directly to the area of obligations and should be classified as matters involving claims arising out of employment relationship. This means that, de lege lata, as regards this type of disputes, the access to court remains open.

Some difficulties arise in the practice of the Polish judiciary as regards access to court in matters regarding declaration of invalidity of the so-called specific sources of labour law29. This seems to be quite controversial since there is no provision which would explicitly provide for a prohibition in this regard. I take the view that in such cases access to court is closed since the constitutional prin-ciple of the right to a fair trial does not apply to resolution of cases regarding va-lidity of sources of law but to protection of personal rights and claims of natural and legal persons. Therefore, de lege lata, it is not possible to establish in court the invalidity of the specific sources of labour law, such as: internal rules, statutes, collective agreements and collective arrangements. A similar view was presented by the Polish Supreme Court in a resolution of 7 judges of 23.5.200130, accord-ing to which a company-level collective agreement cannot be declared invalid in court proceedings after it has been registered. Such matter is not a civil-law mat-ter and the provisions of the collective agreement, also the obligation provisions, cannot be identified with the obligations within the meaning of the civil law.

Also in a situation where an organisational dispute arises between trade un-ions in respect of conclusion of a collective agreement, it cannot be resolved be-

28 Decision of the Supreme Court (SN) of 6.3.1975, I PZ 4/75, OSNCP 1975, No. 6, item 106 with a commentary of W. Siedlecki, PiP 1976, No. 5, item 26. See also: T. Zieliński, Prawo pracy… [Labour law...], p. 238.

29 See: M. Włodarczyk, [in:] K.W. Baran (ed.), Zarys systemu prawa pracy [Outline of the labour law system], Warsaw 2010, p. 389 ff.

30 III ZP 17/00, OSNAPiUS 2001, No. 23, item 684.


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fore a court31. It seems that the only effective procedure to nullify a collective agreement is an objections procedure (procedura zastrzeżeniowa) laid down in Art. 24111 § 51–55 of the Labour Code (KP).

To summarise the above, it seems reasonable to argue that in individual la-bour disputes the access to court is very broad. The restrictions applicable de lege lata are only marginal. In this regard the Polish legislation implements satisfac-torily the constitutional principle of the right of access to court.

31 Judgment of the Supreme Court of 20.7.2000, I PKN 732/99, OSNP 2002, No. 2, item 42.

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Chapter 4. Jurisdiction of labour courts

K.W. Baran

§ 1. Introduction

The starting point for the deliberations on the jurisdiction of labour courts will be an observation that in the states of industrial civilisation the labour courts resolve mainly rights disputes. The interest disputes fall within a competence of arbitration bodies or redress bodies. The arbitration procedure applicable in the Polish legal system will be presented in detail in one of the following chapters of this study.

As regards the scope of jurisdiction of the Polish labour courts, the term „la-bour law matters” defined in Art. 476 § 1 KPC is of key importance. This provi-sion determines, in a decisive but not exclusive manner, the competences of la-bour courts.

In undertaking the analysis of the issue, first it is necessary to consider the grounds of judicial decisions. A starting point should be an observation that these include all labour laws, not only legislative provisions but also the so-called specific provisions of labour law1. I am thinking here of collective agreements2, internal rules and statutes3, if they are based on law and set out the rights and obligations of the parties to an employment relationship. It seems that the opin-ion4 according to which labour-law matters are matters assessed according to the provisions of labour law is too simplistic. This is just a rule. However, when there is a rule, there are exceptions. The point is that a substantive legal basis for

1 See for example: W. Uziak, Specyficzne źródła prawa pracy [Specific sources of labour law], Gdańskie Studia Prawnicze 2000, No. 6, p. 29 ff.

2 See: G. Goździewicz, Charakter porozumień zbiorowych w prawie pracy [Nature of collective agreements in labour law], PiZS 1998, No. 3, p. 18–20.

3 See: A. Jedliński, L. Kaczyński, Statut jako źródło prawa pracy [Statute as a source of labour law], PiP 1999, No. 4, p. 28.

4 A. Świątkowski, Wzory pism procesowych w sprawach z zakresu prawa pracy i ubezpieczeń społecznych [Sample pleadings in labour law and social insurance matters], Warsaw 1991, p. 29.

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resolution of a labour law matter concerned may be provisions of branches of law other than labour law.

A particular case is not deprived of the status of labour law matter by the mere fact that the claim is based on provisions of branch of law other than labour law, provided that such normative basis falls within the personal and material scope defined in Art. 1 and 476 of the Code of Civil Procedure (KPC). When using the term „other” branch of law I mean in particular the civil law, and specifically the provisions of the Civil Code5. Art. 300 of the Labour Code (KP) implemented the provisions of the Civil Code into the labour law system and therefore, de lege lata, there is nothing to prevent them from becoming a substantive legal basis for ju-dicial decisions in labour law matters. A similar view was presented by the Polish Supreme Court6 which held that there is nothing to prevent a dispute from being considered a labour dispute even when there is a need to refer to the provisions of the Civil Code in resolution of such dispute on the merits7. However, they are not applicable in a situation where the provisions of the labour law exhaustively regulate the rights of the parties to an employment relationship8.

On an objective basis, there exist difficulties connected with strict specifica-tion of the scope of jurisdiction of labour courts. Without neglecting the appar-ent normative defects9 in that area, I would like to point out, sine ira et studio, also some advantages of Art. 476 § 1 KPC. It needs to be borne in mind that this provision introduces an essential element of order into the booming terminol-ogy regarding individual labour disputes. However, I must say with regret that so far there has been no appropriate correlation in terminology between the pro-visions of the Labour Code (KP) and the provisions of the Code of Civil Proce-dure (KPC). De lege lata, there is a visible differentiation between the two nor-mative acts which differentiation should be removed through re-codification of labour law, according to terminological convention adopted in the Code of Civil Procedure.

5 See: K.W. Baran, [in:] K.W. Baran (ed.), Zarys systemu prawa pracy [An outline of the labour law system], vol. 1, Warsaw 2010, p. 378 ff.

6 Decision of 20.5.1980, III PZ 6/80, not published in the official collection.7 In a judgment of 27.2.2001, I PKN 279/00, OSNP 2002, No. 22, item 548 the Supreme Court

rightly held that application by the labour court of the provisions of civil law or commercial law and not only provisions of labour law cannot be considered breach of the provisions of the Code of Civil Procedure (KPC) on separate procedure in labour law matters.

8 See a judgment of 15.10.1998 of a Court of Appeal in Białystok, I ACa 340/98, OSA 1999, No. 4, item 17 and a judgment of the Supreme Court of 15.2.2000, I PKN 530/99, OSNAPiUS 2001, No. 13, item 441.

9 See for example: M. Gersdorf-Giano, Jeszcze w sprawie pojęcie „sprawa z zakresu prawa pracy” [Some more comments on the concept of „labour law matter”], PiZS 1988, No. 2, p. 35.

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For a specific case brought before a labour court to be granted the status of labour law matter it is of no importance whether the demand for legal protec-tion is legitimate or not. The legitimacy of the demand is dependent on the ap-plicable substantive regulations and factual circumstances. Such interpretation is based on the assumption that the claim raised in the proceedings (demand for legal protection) demonstrates an intention of the party initiating the proceed-ings and never arises from substantive laws. Further deliberations on the scope of jurisdiction of labour courts will be based on the classification adopted in the procedural law10. The only exception will apply to actions for a declaratory judg-ment (regarding the existence or non-existence of an employment relationship) (Art. 476 § 1 (11) KPC). They will be characterised together with other catego-ries of declaratory actions.

§ 2. Matters involving claims arising out of employment relationship

In theoretical terms, it is possible to divide between two concepts of a mat-ter involving claims arising out of employment relationship: the broad and the narrow concept. According to a broad concept, it means any matter based on the facts which imply existence of an employment relationship between the par-ties or a right connected with such relationship11. These mean any and all12 rela-tions between an employee and an employer in connection with the performance of work. In the past, the judiciary13 extended the concept in question – in per-sonal terms – to include also the disputes of heirs and members of agricultural cooperatives.

Matters involving claims arising out of employment relationship (in a strict sense) are matters relating to rights and obligations of the parties to an employ-

10 As regards the jurisdiction of labour courts, I should start with paragraph 1 of Art. 476 § 1 KPC. There is no doubt that this provision applies to two categories of matters, the first one involv-ing claims arising out of employment relationship (roszczenia ze stosunku pracy) and the second one involving claims relating to an employment relationship (roszczenia związane ze stosunkiem pracy). According to clara non sunt interpretanda principle, it needs no clarification.

11 See a resolution of the Civil Chamber of the Supreme Court of 24.1.1959, 1 Co 27/58, OSN 1960, No. 1, item 2.

12 See a resolution of the Supreme Court of 15.12.1975, I PZP 46/75, OSNCP 1976, No. 6, item 123 and a resolution of the Supreme Court of 9.1.1976, III PZP 16/76, OSNCP 1976, No. 6, item 128.

13 See: J. Jończyk, Spory ze stosunku pracy [Employment disputes], Warsaw 1965, p. 93 and 131; J. Tyszka, Roszczenia ze stosunku pracy [Claims arising out of employment relationship], PiZS 1976, No. 1, p. 15–17; M. Mędrala, Funkcja ochronna… [The protective function…], p. 91 ff.


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ment relationship set out in legal and contractual provisions governing the em-ployment relationship. Entry into a contract of employment establishes a new legal relationship and creates rights and obligations both for the employee and the employer, arising not only from the contract14 of employment but also from applicable laws, collective agreements or internal rules and statutes. Therefore, the matter in dispute is non-performance or improper performance by one of the parties of their respective obligations.

In a material sense, matters involving claims arising out of employment rela-tionship cover all rights and obligations arising from the employment relation-ship. Since in the market economy there are no standard terms and conditions of employment, a strict and consistent specification is not possible. The multiple dimensions of rights and obligations15 under different employment relationships often make it impossible to determine unambiguously whether the claim con-cerned falls within the scope of an employment relationship.

Each time, significantly important will be determination of the source of the claim. In the Polish legislative system it may be either normative or based on internal rules16, a contract (obligation)17 or a collective agreement. In the latter case the source of claims are collective agreements based on law, setting out the rights and obligations of the parties to an employment relationship. These include normative provisions18 of collective agreements, agreements on suspension of labour laws19, agreements on application of terms and conditions of employment less favourable than those set out in the contract of employ-

14 This aspect was rightly pointed out by the Supreme Court (SN) in a judgment of 12.1.2012, I PK 88/11, argument 1, Legalis.

15 See in particular: B. Wagner, O swobodzie umowy o pracę raz jeszcze [Once again on the freedom of contract of employment], [in:] M. Matey, L. Nawacki, B. Wagner (eds), Księga Jubileuszowa Profesora Tadeusza Zielińskiego. Prawo pracy a wyzwania XXI wieku [The anniversary book of pro-fessor Tadeusz Zieliński. Labour law and the challenges of the 21st century], Warsaw 2002, p. 379–381.

16 If provisions of internal rules apply directly to the terms and conditions of an employment relationship then the matter should be classified as a matter involving claims arising out of employ-ment relationship, and if they apply only indirectly – it should be considered a matter involving claims relating to the employment relationship. In this context a reference should be made to a judgment of the Supreme Court of 15.1.2009, II PK 125/08, OSNP 2010, No. 15–16, item 180, according to which a case concerning reimbursement of awards wrongly received by a member of the management board of a foundation on the basis of the provisions of internal rules and not the provisions of a contract of employment is a matter involving claims relating to an employment relationship and not a matter involving claims arising out of employment relationship.

17 See a judgment of 14.4.2005, II CK 606/04, Legalis.18 See: K.W. Baran, Zbiorowe… [Collective...], p. 54.19 See: K. Rączka, Porozumienia zawieszające przepisy prawa pracy [Agreements on suspension

of provisions of labour law], PiZS 2002, No. 11, p. 7 ff.; K.W. Baran, Kodeks pracy. Komentarz [Labour Code. Commentary], Warsaw 2012, p. 68–74 and p. 186–189.

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ment20, agreements on collective redundancies21, agreements ending a collective dispute22 and agreements concluded in connection with the transfer of an un-dertaking to a new employer.

Before I go into detailed analysis relating to the concept of a matter involving claims arising out of employment relationship, I should first present the most typ-ical types of disputes which fall within this category. Because of the multiplicity and diversity of conflicts between an employee and an employer, it is impossible to create a closed catalogue of disputes. Because of the fact that the formula es-tablished in Art. 476 § 1 (1) KPC is open, it precludes application of an enumera-tive list. It seems possible to point out only the most significant types of matters. By nature, it is only illustrative.

Matters involving claims arising out of employment relationship in a material sense are matters concerning:– notice to amend wage and/or working conditions (wypowiedzenie warunków

pracy lub płacy/wypowiedzenie zmieniające),– termination of an employment relationship,– expiration of an employment relationship,– protection of personal rights23,– equal treatment in employment (for example in the event of discrimination

or harrassment),– workplace mobbing (bullying),– base salary24,– bonuses and awards,– other elements of the remuneration (for example balance-sheet surplus25)

20 See: M. Gersdorf, Próba umiejscowienia nowych porozumień o zawieszaniu postanowień umów o pracę w polskim porządku prawnym [New agreements on suspension of provisions of contracts of employment in the Polish legal system], PiZS 2003, No. 1, p. 15 ff.

21 See for example E. Wichrowska, Zwolnienia grupowe [Collective redundancies], Warsaw 1991, p. 24; J. Iwulski, K. Jaśkowski, Zwolnienia grupowe. Praktyczny komentarz [Collective redundancies. A practical commentary], Warsaw 1995, p. 62 ff.

22 See: K.W. Baran, Porozumienia zawierane w sporach zbiorowych jako źródła prawa pracy [Agreements concluded in collective disputes as sources of labour law], MoPr 2008, No. 9, p. 3 ff.

23 According to a judgment of the Supreme Court (SN) of 5.11.2008, I CSK 189/08, Legalis, a case concerning protection of personal rights may be considered a matter involving claims arising out of employment relationship if it concerns violation of such rights by the employer’s action because in such event it is both materially and personally linked to an employment relationship.

24 See a resolution of the Supreme Court of 11.5.2010, III PZP 3/10, OSNP 2010, No. 19–20, item 226 in which a social labour inspector demands payment by an employer of a lump-sum remuneration specified in Art. 15 (3) of the Act on the social labour inspection.

25 According to a decision of the Supreme Court of 25.11.2009, II CZ 59/09, Legalis, if a balance-sheet surplus is a part of the remuneration, then the claims of members of a cooperative for payment of such surplus are claims arising out of employment relationship.


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– annual leave,– business trip expenses,– severance payments,– rights of women,– rights of young workers,– certificates of employment (świadectwa pracy),– working time,– remuneration in-kind and other benefits in-kind,– cancellation of penalties for breach of order in the workplace (kary porządkowe),– protection of labour,– employer’s liability for damages,– employee’s liability for damages,– ordering an employer to provide an employee with information of crucial

importance for his work-related situation26.In presenting the above list, I have focused on the matters which beyond

doubt belong in the category of matters involving claims arising out of employ-ment relationship. It should also be kept in mind that not only the employee but also the employer has the capacity to sue if the latter raises claims based on the provisions of labour law. For example, according to Art. 611 of the Labour Code, in the case of unjustified termination by the employee of a contract of employ-ment without notice under Art. 55 § 11 of the Labour Code, the employer shall have a claim for compensation. From a procedural point of view it is not relevant that the claim is pursued after the end of the employment relationship. Similar-ly, the employer’s claim for repayment of undue employment benefits pursued against the former member of a management board of a joint-stock company employed in that company under a contract of employment is a matter arising out of employment relationship27.

Following the previous deliberations on the concept of a matter involving claims arising out of employment relationship, I should now focus on the mat-ters the classification of which is not that obvious. I am thinking here of „border-line” cases, mainly between the labour law and civil law or companies law. It is very difficult to establish an abstract and at the same time a universal formula. The reason for this is that an employee and an employer may be bound by obli-gations relationships of diverse nature. Often, only on the basis of a detailed de-termination of normative context and factual circumstances of a specific dispute

26 See a judgment of the Supreme Court of 16.9.1999, I PKN 331/99, OSNAPiUS 2001, No. 9, item 314.

27 See a resolution of the Supreme Court of 27.3.2007, II PZP 2/07, Legalis.

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it is possible to establish whether a matter concerned is a matter involving claims arising out of employment relationship.

A specific illustration of this problem may be classification of compensa-tion claims raised by an employee against an employer as a result of loss of or damage to a vehicle at the company premises. Such claims may be considered matters arising out of employment relationship only where an obligation to en-sure a guarded car park for vehicles was laid down in a contract of employment, in a collective agreement28 or in internal rules. Otherwise, a case should be in-cluded in the category of civil-law matters falling within a competence of civil departments of general courts.

In practice, certain doubts arise when an employer benefits from property items which belong to an employee. Usually this involves performance of work by the employee with the use of his own equipment (such as teleworking). Accord-ing to a uniform case-law of the Supreme Court29, disputes regarding payment of compensation for the use of such equipment are matters involving claims aris-ing out of employment relationship30. However, in my opinion such standpoint is too simplistic. This is because the directives developed in the case-law apply only to the situations where the parties to an employment relationship did not enter into a separate civil law contract. If such contract was concluded (such as for ex-ample a loan for use contract (umowa użyczenia)) – even per facta concludentia – then a dispute concerning its performance should be classified as a civil matter in a strict sense. Therefore, it seems reasonable to argue that it falls within a ju-risdiction of a civil department of a court of general jurisdiction.

On the other hand, worth discussing are disputes concerning the use by the employees of items of property of the employer. Certain doubts arise as to wheth-er such disputes may be considered matters involving claims arising out of em-ployment relationship. There are three possible situations: first – when an em-ployee uses the property of the employer under a civil-law contract separate from a contract of employment; second – if the employee does that under certain pro-visions – usually included in collective agreements or internal rules – of the la-bour law; third – if he does that arbitrarily, without any contract, sometimes even in violation of criminal laws.

28 See a resolution of the Supreme Court of 2.12.1975, I PZP 43/75, OSNCP 1976, No. 5, item 107.29 See a judgment of the Supreme Court of 13.3.1959, 3 CR 18/59, OSPiKA 1960, No. 5, item

117 and a decision of the Supreme Court of 7.11.1978, I PZ 21/78, OSPiKA 1980, No. 2, item 21 with a supporting commentary of G. Bieniek.

30 Within the meaning of Art. 476 § 1 (1)(2) of the Code of Civil Procedure (KPC) matters involv-ing claims arising out of employment relationship do not include claims of a contractor arising from a home-based work agreement and concerning costs incurred in the performance of that agreement (see a resolution of the Supreme Court of 19.12.1978, I PZP 36/78, OSNCP 1979, No. 5, item 96).


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As regards the first situation, I think that disputes concerning the provisions of civil-law contracts cannot be classified as employment matters because of the substantive basis of the claim. However, these may be considered matters arising „on the occasion” of the employment relationship since the existence of the em-ployment relationship has functionally contributed to establishment of another legal relationship, a civil-law relationship.

The second group of disputes should undoubtedly be classified in the cate-gory of matters involving claims arising out of employment relationship. Claims raised by the employer fall within the obligations bond which is employment rela-tionship. This is the case even where a specific claim does not refer directly to the process of performance of work and through Art. 300 of the Labour Code (KP) it is based on the provisions of the Civil Code. Therefore, a dispute for compen-sation connected for example with damage to or loss by the employee of prop-erty items – which were lent to him by the company, under internal rules, for use during vacation leave – should be classified as a matter involving claims arising out of employment relationship.

The most controversial is the third situation described above. This involves various factual situations such as unauthorised use of employer’s property or ac-quisitive crime. In practice, particularly difficult is classification of claims raised against an employee for repair of damage caused in the property of the employer if such damage was caused outside the working hours. Specifically, this applies in a situation where an employee-driver damages a company car after working hours, when such a car was used by him for private purposes. In a judgment31 of 28.5.197632, the Supreme Court held that such damage is a consequence of breach of an obligation independent of the employment relationship; therefore a respec-tive dispute is not a matter arising out of employment relationship. In a judge-ment of 4.5.198833 the Supreme Court upheld the previous case-law and pointed out that the claim raised by the employer against the employee for compensation for damage of a company car wrongly taken by the employee for private purposes is not a labour law matter within the meaning of Art. 476 § 1 (1) KPC.

In this case the crux of the problem lies in concurrence of liabilities: a liability in tort and contractual liability since both the general obligation and obligation under employment relationship was violated. The liability for damages may be li-ability either in contract or in tort. It seems that a resolution of that problem may be a directive according to which a dispute for compensation is always a matter arising out of employment relationship if one of the parties has failed to fulfil the

31 PiZS 1977, No. 8–9, p. 89.32 IV PR 49/76, OSPiKA 1979, No. 1, item. 16.33 IV PR 117/88, PiZS 1988, No. 8, p. 69.

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obligations under such relationship, regardless of whether the provisions of civil law were breached too. Of course this directive cannot be applied to all norma-tive relations between an employee and an employer. It could be misleading, in particular in a situation where an employee committed a crime against employer’s property, without any relation to work. Therefore, in such matters, it is necessary to specify a proper source34 of liability. Therefore, if in a case concerned it is ap-parent that employee’s duties were not violated, then the case should be classified as a civil law matter since the basis of liability are only provisions of a Civil Code governing violation of non-contractual obligations, specifically the provisions governing liability in tort. This is because an employee is liable in tort as an of-fender and not as a person performing work for an employer.

In analysing the concept of a matter involving claims arising out of employ-ment relationship, it is useful to draw attention to the worker accommodation. In the case of disputes concerning accommodation in worker hostels, Art. 262 § 2 (3) KP explicitly provides that the labour courts are not competent to hear such disputes. The ratio legis of such regulation is based on the fact that a lease contract is a civil law contract35 and thus any matters resulting from it fall un-der jurisdiction of the civil courts of general competence. A similar opinion was presented by the Supreme Court36. In a resolution of 3.4.1992, it held that a case concerning vacating the premises in workers’ hostel should be heard by a court.

The matters involving claims arising out of employment relationship include also disputes between an employee and an employer arising from the so-called autonomous clauses (klauzule autonomiczne). Such clauses establish in the obli-gations sphere of an employment relationship either a supra-statutory protection of employer’s interests (such as an obligation to have regard to the welfare of the employer’s client) or special workers’ privileges (for example regarding education, promotion, remuneration or protection of health).

The matters involving claims arising out of employment relationship include any disputes relating to the status of an employee. For example, these may include situations where an employer fails to prepare memos37, periodic evaluations38, does not provide access to personal files39 and various compensations (for ex-

34 See a resolution of the Supreme Court of 13.5.1965, III PO 40/64, OSNCP 1966, No. 6, item 88.35 See a resolution of the Supreme Court of 21.11.1986, II CZP 59/86, OSNCP 1987, No. 7,

item 88.36 III CZP 26/92, OSNCP 1992, No. 11, item 190.37 See a decision of the Supreme Court of 16.3.2000, I PKN 672/99, OSNAPiUS 2001, No. 15,

item 490.38 See a decision of the Supreme Court of 16.3.2000, I PKN 723/99, OSNAPiUS 2001, No. 17,

item 535.39 See a judgment of the Voivodeship Administrative Court (WSA) in Warsaw of 6.9.2005,

II SA/Wa 825/05.


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ample where the employer refrains from returning a school certificate or other documents)40. In this context it should be noted that a case in which an employee injured in an accident at work seeks compensation under provisions of civil law from another employer by whom he was not employed at the time of the accident is not a matter involving claims arising out of employment relationship41. In such case a court of competent jurisdiction will be a civil court.

In the industrial labour relations, in addition to the matters involving claims arising out of employment relationship there are also rights disputes between an employee and an employer which at the material level do not relate to an em-ployment relationship. They are classified as matters „on the occasion” of an em-ployment relationship. In descriptive terms, there is no material relation between the dispute and the employment relationship despite the fact that the parties in-volved in the dispute remain in an employment relationship with each other. Following a more detailed analysis of this problem it should be concluded that the absence of a material relation between the dispute and the employment re-lationship means that at the normative level there is no direct interdependency between the claim raised by the employee or the employer and the employment relationship. This means that the dispute would arise between the same parties even if they were not in an employment relationship since each of the parties, apart from being an employee or an employer respectively, has also other role resulting from other legal relationship. Therefore, the employment relationship is merely a factual platform based on which the parties conclude a separate con-tract, usually a civil law contract. So the only link with the employment relation-ship exists at the functional level. In this context a reference should be made to a judgment of the Supreme Court42 of 10.10.2008, according to which a claim re-lating to an employment relationship cannot be pursued against a party who is not an employer in a broad sense (for example a legal successor of the employer). The employment relationship binds the employee and the employer and not the parties who are linked to each other on the occasion of the performance of work. The existence of an employment relationship is not necessary and is of no rel-evance for creation of a legal bond between them giving rise to civil law claims.

Before I go into detailed analysis, first I should discuss the examples of mat-ters which according to court practice are considered matters „on the occasion” of the employment relationship. I should start with a dispute concerning employ-er’s claims against an employee for payment of a difference in a price of construc-tion materials purchased by the employee from the employer. In circumstances

40 See a judgment of the Supreme Court of 6.10.1976, I PR 130/76, OSNCP 1977, No. 4, item 82.41 See a decision of the Supreme Court of 17.7.1986, IV CZ 93/86, OSNCP 1987, No. 11, item 117.42 See a judgment of the Supreme Court of 10.10.2008, II CSK 232/08, Legalis.

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at issue the parties to an employment relationship entered into sales contract, completely separate from that employment relationship. Therefore, the Supreme Court43 rightly classified a dispute arising under that contract in the category of matters not relating to an employment relationship, and therefore not falling un-der the jurisdiction of labour courts. The employment relationship was merely an „occasion” for the employee and the work establishment to enter into a civil law contract. It is therefore fully reasonable to assume that such case relates – ac-cording to Art. 1 KPC – to civil law relationships.

Given the circumstances of the case in question, it is worth emphasizing that the classification would be completely different if the provisions of labour law, in particular the provisions of collective agreements, obligated the employer to sell to the employee (for example at wholesale prices) the products manufac-tured in such establishment. In such case, it could reasonably be assumed that such obligation falls within the broader terms and conditions of the employment relationship.

In practice, certain doubts arise also in the case of application of bills of exchange in labour relations. As rightly pointed out by the Supreme Court in a judgment of 22.6.201144, a matter involving a demand to deliver a blank bill is-sued by the employee to secure employer’s claim for repayment of a loan which is not based on an employment relationship or other relationship related to the employment relationship, is not a labour law matter. However, it may be consid-ered a matter involving claims relating to an employment relationship.

In the past, the jurisprudence45 of Polish labour law classified the matters concerning protection of personal rights as matters „on the occasion” of an employment relationship. Supporters of that view46 argued that the protection of personal rights is granted to a person as a citizen and not as an employee. They also emphasized that the unlawful conduct of the employer constituted a tort. De lege lata, such interpretation has no normative justification. Accord-ing to Art. 111 KP, an obligation to respect dignity and personal rights47 of an employee is an inherent element of an employment relationship. De lege lata, ac-tions against the employer in that respect48 are matters involving claims arising

43 See a resolution of the Supreme Court of 5.8.1986, III PZP 48/86, OSNCP 1987, No. 7, item 94.44 III PK 1/11, OSNP 2012, No. 15–16, item 190.45 See: J. Piszczek, Cywilnoprawna ochrona godności pracowniczej [Civil-law protection of em-

ployee’s dignity], Toruń 1981, passim.46 See a resolution of the Supreme Court (SN) of 28.5.1971, III PZP 33/70, OSNCP 1971, No. 11,

item 188.47 See: M. Dyczkowski, W sprawie ochrony dóbr osobistych pracowników [Protection of personal

rights of workers], PiZS 2001, No. 3, passim; I. Boruta, Ochrona dóbr osobistych pracownika [Protec-tion of personal rights of a worker], PiZS 1998, No. 2, passim.

48 See a judgment of the Supreme Court of 5.11.2008, I CSK 189/08, OSNC 2010, No. A, item 3.


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out of employment relationship. In this context it should be stressed that matters involving claims in respect of violation of personal rights against a natural per-son not being an employer (for example against other employee) are not consid-ered labour law matters49.

Certain doubts arise also in a situation where an employer seeks judicial pro-tection of his personal rights violated in labour relations. If these were violated by an employee in the performance of duties arising out of employment relationship, it should be accepted that they fall within a jurisdiction of a labour court as mat-ters involving claims arising out of employment relationship. On the other hand, in a situation where an employer sues other parties (for example an administra-tor of an internet portal in which his personal rights were violated) the matter is a civil-law matter in a strict sense even if the factual circumstances relate to the performance of work.

To summarise the above considerations on the matters involving claims aris-ing out of employment relationship, I should conclude that this category includes any disputes between an employee and an employer concerning the terms and conditions of employment. This applies also to claims pursued after the end of an employment relationship. At the procedural level, it is only relevant that the subject-matter of a dispute are rights or obligations arising directly from the pre-viously existing obligations relationship which may be characterised as employ-ment relationship.

§ 3. Matters involving employment-related claims

In theoretical terms, matters involving employment-related claims (matters involving claims relating to an employment relationship) are matters concerning rights and obligations related indirectly to an employment relationship. This in-direct relation means „genetic and functional” connection with the employment relationship in such sense that if the latter did not exist, then the right which is the subject-matter of the claim would not be created. A decisive factor will be the „level of intensity” of the relation between the claim and the employment rela-tionship. In the normative sphere, there is no objective instrument which would allow establishing such link, in abstract terms, in each specific dispute. It seems that the „level of intensity” of the relation between the claim and the employment

49 See a resolution of the Supreme Court of 3.8.2007, I PZP 7/07, OSNP 2008, No. 5–6, item 55 and D. Dörre-Nowak, [in:] B. Wagner (ed.), Kodeks pracy. Komentarz [Labour Code. Commentary], Gdańsk 2010, p. 62.

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relationship should be evaluated taking into account both the material50 and per-sonal aspect51. At the functional level, it may be argued52 that the legal basis of employment-related matters results not from direct exercise of the rights and ob-ligations of the parties to an employment relationship but from other statutory or contractual obligations of the employer or parties related to the employer to-wards the employee or his family or heirs. In each case they are subsidiary to the employment relationship and may be illustrated as satellites.

An example of such category of cases are disputes arising from allotment and redemption of shares of privatised state-owned companies. In the context of the applicable laws, there is no normative justification in support of the argument that preferential acquisition of shares by an employee falls within the scope of employment relationship. However, it is integral to such relationship53 since the existence of that relationship on a date specified in the shares allotment regula-tions is a precondition for acquisition of the rights by the employee. A similar standpoint was presented by the Supreme Court in its judgment54 of 6.8.1998, in which the court held that an action brought by an employee (former employee) against State Treasury – the Minister of Treasury – to order making a statement of transfer of shares of a company established as a result of commercialisation and privatisation of undertakings, as well as claims for compensation for loss of right of free acquisition of shares is a matter involving employment-related claims. Also, actions brought by heirs of an employee against State Treasury for compensation for loss of the right to free of charge acquisition of shares of a com-pany established as a result of transformation of a state-owned enterprise belong in this category of matters.

Because of the nature of this book, I should focus on the issues which are controversial. I will start with a problem which has long raised doubts regard-ing competences. I am thinking here of death allowance (odprawa pośmiertna). An employee is by no means entitled to a death allowance since such right arises

50 It is worth noting that matters arising between employees employed at the same establishment are not included in the category of matters involving employment-related claims. Their relation to the employment relationship is only „location-based”. A substantive legal basis for their resolution are provisions of the civil law and therefore such matters should be classified as civil law matters in a strict sense.

51 See a disputable resolution of the Supreme Court of 9.4.2009, II PZP 4/08, OSNP 2008, No. 19–20, item 280, according to which an action brought by a assignee of employer’s claim against an employee for repayment of undue remuneration is a labour law matter.

52 See the reasoning of a resolution of the Supreme Court, III CZP 116/94, OSNCP 1995, No. 2, item 29, p. 34.

53 According to a view presented by the Court of Appeal in Poznań in a judgment of 6.11.2001, ACa 582/01, Pr. Gosp. 2002, No. 9, p. 58, the right to a free acquisition of shares of a commercial company is derived from the existing or previously existing employment relationship.

54 III ZP 24/98, OSNAPiUS 1999, No. 17, item 545.


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upon his death, which means upon expiration of an employment relationship. De lege lata it arises from a legal relationship established ex lege under Art. 93 of the Labour Code between the employer and family members of an employee listed in that article55. Undoubtedly, a primary source of that bond is an employ-ment relationship; without it there would be no entitlement to the death allow-ance. In this sense the claim for payment is „genetically” related to that relation-ship. This clearly argues in favour of inclusion of such matters into a category of employment-related matters.

From a procedural point of view, a similar classification applies to a case where claims are pursued by heirs of a deceased employee who have acquired the rights through inheritance. These include matters concerning outstanding monetary benefits which were not paid by the employer to the deceased em-ployee. Here, unlike in the case of a death allowance, the source of the personal rights is the employment relationship. This illustrates a strict, however indirect (through the provisions of inheritance law) relation between the claim and the employment relationship. And because of that element of „indirectness”, I tend to share the view that matters involving claims of employee’s heirs should be in-cluded in the category of employment-related matters. I am also aware that an opposite view56 can be defended by reference to a „primary source” of the ob-ligation which is the employment relationship. To remain consistent, I take the view that also in the opposite situation, where the employer claims compensa-tion against the heirs of the deceased employee57, it should be considered an em-ployment-related matter.

According to the classification adopted in the Code, another category are non-competition claims58. At the procedural level, classification of that catego-ry of matters cannot be uniform. In my opinion claims arising from an agree-ment concluded under Art. 1011 of the Labour Code (KP) are claims arising out of employment relationship since they relate directly to the relations between an employee and an employer under that relationship. The situation is different in the case of non-competition obligation after the end of an employment rela-

55 M. Skąpski, [in:] K.W. Baran (ed.), Kodeks pracy. Komentarz [Labour Code. Commentary], Warsaw 2012, p. 620 ff.

56 See: A. Patulski, Spory pracy a inne rodzaje sporów [Labour disputes and other disputes], War-saw 1985, p. 52–53.

57 See a resolution of the Supreme Court of 29.10.1980, I PZP 35/80, OSNCP 1981, No. 4, item 55.58 See for example M. Lewandowicz-Machnikowska, Umowy i klauzule umowne ograniczające

dodatkowe zatrudnienie [Contracts and contractual clauses restricting additional employment], PiP 2000, No. 11, p. 79; A. Świątkowski, Umowa o zakazie konkurencji [Non-compete agreement], [in:] B.M. Ćwiertniak (ed.), Prawo pracy. Zabezpieczenie społeczne (z aktualnych zagadnień) [Labour law. Social Security (current problems)], Opole 2001, p. 43–44.

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tionship59 (Art. 1012 KP). Claims pursued under such agreement should be clas-sified as claims relating to the employment relationship since they refer to rela-tions only functionally connected with the ended employment relationship. This is because new rights and obligations of the parties are involved, regulating the interests which go beyond that legal relationship.

A similar differentiation mechanism applies at the procedural level as regards classification of matters regarding establishment of an employment relationship. Certain doubts arise as to whether these matters involve claims arising out of em-ployment relationship or they are merely connected with such relationship. This problem is not explicitly prejudged by Art. 264 § 3 KP even if implicite it assigns such category of matters to the jurisdiction of labour courts. The starting point for further deliberations will be an observation that from a substantive point of view, this category of matters is not uniform. On the basis of a criterion of previ-ous existence of an employment relationship, two sub-categories can be distin-guished in this category of matters. The first one includes matters concerning re-employment if an employment relationship was previously terminated or expired and under specific provisions the former employee has a personal right to re-em-ployment (for example Art. 66 § 2 of the Labour Code, Art. 9 of the Act on special rules of termination of employment for reasons not attributable to employees60). On the other hand, the second category includes matters regarding establishment of an employment relationship for the first time. These may be situations arising from conclusion of a preliminary contract61 of employment62, as well as labour law standards which create the right to establish an employment relationship for the categories of persons specified by law.

In the substantive sphere, there is a qualitative difference between the two categories of matters. This means that the first category of matters follows from a legal bond existing in the past which had a form of employment relationship while in the other category there is no such bond. Therefore, it may be accepted that matters regarding re-employment relate to the rights and obligations aris-ing directly from an employment relationship but the claims arising from that relationship are raised after the end of that relationship. On the other hand, in

59 See a decision of the Supreme Court of 9.7.2004, II CZ 76/04, Legalis.60 See: K.W. Baran, Zbiorowe prawo pracy. Komentarz [Collective labour law. Commentary],

Warsaw 2010, p. 552 ff.61 See resolutions of the Supreme Court (SN) of: 2.10.1975, I PRN 21/75, OSPiKA 1978, No. 9

with a commentary of A. Mirończuk; of 21.6.1972, II PZP 13/72, OSNCP 1972, No. 12, item 201; of 26.7.1974, III PZP 22/74, OSNCP 1975, No. 2, item 23; of 22.4.1977, I PZP 5/74, OSPiKA 1978, No. 5, item 98 with a commentary of W. Masewicz; of 3.10.1979, I PRN 128/79, OSPiKA 1980, No. 12 with a commentary of A. Kijowski.

62 See: W. Muszalski, Przedwstępna umowa o pracę czy zbędna konstrukcja prawna [Preliminary contract of employment or a redundant legal construct], PiZS 1999, No. 3, p. 22 ff.


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other categories of matters regarding establishment of an employment relation-ship the parties are in a legal relationship other than the employment relation-ship. And it is regulated by the provisions implemented – for example through Art. 300 KP – into the labour law system. For that reason I take the view that in terms of procedural laws the matters regarding establishment of employment relationship should not be classified equally. As far as they concern re-employ-ment, they should be included in the category of matters involving claims aris-ing out of employment relationship, and the other matters should be included in the category of matters involving claims arising from other legal relationships to which provisions of labour law apply under separate laws63. In the latter case it is difficult to accept that a matter is employment-related since no such employ-ment relationship existed during or before the commencement of the proceed-ings. I include in this category of matters in particular disputes for compensation for refusal to hire resulting from breach of the principle of non-discrimination64 or equal treatment of men and women65 (Art. 183d of the Labour Code in con-nection with Art. 183b § 1 (1) of the Labour Code).

On the other hand, matters involving employment-related claims include disputes relating to compensation for damage arising from non-obtainment by a former employee of social insurance benefits as a result of employer’s failure to comply with the obligations (for example failure to pay contributions). This was confirmed by the Supreme Court in a resolution of 3.2.198966, in which the Court held that an employment-related claim is a claim of a former employee for com-pensation for lost pension allowance for work in special conditions.

In analysing the insurance-related obligations of the employer, worth men-tioning is the procedural classification of disputes concerning commercial (prop-erty) insurances. In my opinion these should be divided into two categories. The first one is where an employee seeks compensation from the employer as a result of non-fulfilment by the latter of the obligations in respect of commercial insurance imposed under provisions of a collective agreement or internal regula-tions. The second one is where the compensation for non-fulfilment of the obli-gation in respect of commercial insurance is sought by the heirs of the employee.

63 See a judgment of the Supreme Court (SN) of 19.1.1998, I PKN 482/97, OSNAPiUS 1998, No. 23, item 686 in which the Court rightly held that a case concerning conclusion of a final contract of employment [Art. 389 and 390 of the Civil Code (KC) in connection with Art. 300 of the Labour Code (KP)] is a labour law matter and cannot be considered a dispute concerning new wage and working conditions within the meaning of Art. 262 § 2 (1) KP.


65 See: K. Jaśkowski, E. Maniewska, Kodeks pracy. Komentarz. Ustawy towarzyszące z orzec-znictwem [Labour Law. A commentary. Accompanying regulations and case-law], Cracow 2003, p. 77.

66 III PZP 54/88, OSNCP 1990, No. 2–3, item 39.

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Therefore, it is reasonable to argue that in the first category a dispute is directly related to the terms of employment, and in the second category such relation is indirect. This means that the heirs acquire their rights under the provisions of inheritance law. However, because of the fact that the content of their claims is in-tegrally (we could say „genetically”) related with an employment relationship, the matter should be classified, based on the a completudine argumentation, as a mat-ter involving employment-related claim. An example may be an action brought by a widow against the employer of her husband for compensation in a situation where the employer (defendant) failed to pay insurance contributions which re-sulted in expiration of an insurance agreement and consequently in deprivation of the plaintiff of the right to obtain benefits67.

§ 4. Matters involving claims arising out of other legal relationships... to which provisions of labour law apply

under separate laws

In undertaking the theoretical analysis of matters involving claims arising out of other legal relationships to which provisions of labour law apply under separate laws, I should first focus on the material scope68. In particular, what re-quires interpretation is the term „other legal relationships”. The legislation does not provide for any, even indirect, definition of that term. Therefore, I think that this issue should be viewed in the framework of a comprehensive interpretation of the entire Art. 476 § 1 KPC.

Analysis of that provision implies that the expression „other” was introduced in paragraph 2 in opposition to paragraph 1 of that clause. This is how the legis-lature attempted to emphasize the distinctiveness of matters laid down in para-graph 2 from matters involving claims arising out of employment relationship and matters involving employment-related claims. In my opinion the wording of that article in terms of clarity of definition of a labour law matter is redundant, and in terms of the legislative technique even defective. To maintain the logi-cal consistency of Art. 476 § 1 KPC, it is sufficient to omit the word „other” in paragraph 2. This ensures respect – at the normative level – for methodological

67 See a resolution of the Supreme Court of 22.10.1969, III PZP 29/69, OSNCP 1970, No. 6, item 101.

68 As with the matters involving claims arising out of employment relationship, also as regards these involving employment-related claims it is not possible to provide a numerus clausus of all mat-ters of that type.

§ 4. Matters involving claims arising out of other legal relationships...

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directive of W. Ockham according to which „entities should not be multiplied beyond necessity”. It is worth emphasizing that the material and personal scope laid down in Art. 476 § 1 (2) KP will not be changed at all as compared to the present wording.

What still needs to be discussed in the context of the term „other legal re-lationships” is the legal nature of such relationships. More specifically, this is about answering a question whether this includes only civil-law relationships or also administrative-law relationships. In my opinion there are no normative grounds for differentiating the material scope of the term „other legal relation-ships”. My standpoint may be supported by the lege non distinquente argument. Therefore, it seems reasonable to argue that the labour courts have jurisdiction in matters involving claims arising from the so-called administrative non-em-ployee employment relationships, provided that separate laws governing employ-ment of specific categories of public sector employees (the so-called pragmatyki) make an explicit reference to the provisions of labour law. Such interpretation promotes concentration of the jurisdiction based on the labour legislation, with-in the competence of specialised judicial bodies – the labour courts. Moreover, I think that under Art. 476 § 1 (2) KPC it is possible to include in the jurisdic-tion of labour courts the matters arising from penal, societal and social employ-ment relationships, provided that the conditions laid down in that article are met.

An issue which requires further clarification in the analysis of the provisions of Art. 476 § 1 (2) KPC is the meaning of separate laws the existence of which determines specification of rank of these laws. Obviously, these may be either statutory laws or provisions adopted under statutory laws. An example of the first situation are provisions of separate laws governing employment of specific categories of public sector employees (the so-called pragmatyki) which make ref-erence to the provisions of labour law. In principle, they all contain one similar formula according to which a female officer may benefit from all entitlements granted to women in relation to pregnancy and maternity69. In the context of the provisions of Art. 476 § 1 (2) KPC any claims in this respect are classified as la-bour law matters. However, it should be kept in mind that the practical applica-tion of that regulation is very limited.

The situation is different in the case of persons performing home-based (cot-tage) work (praca nakładcza). A regulation of the Council of Ministers adopted

69 See: Art. 79 of the Act on police (ustawa o Policji), Art. 83 of the Act on Border Guards (ustawa o Straży Granicznej) (Journal of Laws [Dz.U.] 2007, No. 43, item 777), Art. 69 of the Act on the State Fire Service (ustawa o Państwowej Straży Pożarnej) (Journal of Laws [Dz.U.] of 2009, No. 12, item 68), Art. 57 of the Act on the military service of professional soldiers (ustawa o służbie wojskowej żołnierzy zawodowych) (Journal of Laws [Dz.U.] of 1997, No. 10, item 55).

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under Art. 303 § 1 KP70 very often71 makes reference to the provisions of the la-bour law and, implicite, it establishes a competence of labour courts.

As regards the term „separate laws” used in Art. 476 § 1 (2) KPC, it should now be considered whether they include also internal (in-company) sources of labour law. A functional interpretation of Art. 9 § 1 of the Labour Code (KP), based on a cohaerentia directive and supported by loco communi formula, seems to imply a positive answer to this question. However, it is conditional upon fulfil-ment of normative factors72 prescribed by this provision. It is also worth noting that as regards the specific sources of labour law, it uses the term „regulations” and not provisions as in the case of legislative acts. Therefore, it may be assumed that Art. 476 § 1 (2) KPC applies also to internal rules and statutes. The present-ed interpretation seems to be of particular importance in the case of claims pur-sued by members73 of agricultural production cooperatives (rolnicze spółdzielnie produkcyjne) and their household members. In a restrictive interpretation option, only two categories of claims would fall within the jurisdiction of labour courts.

To sum up the deliberations on the recovery of claims by the members of ag-ricultural production cooperatives, I consider that as regards the scope ratione materiae of the term „labour law matters”, it does not include claims arising from membership (such as a claim for reimbursement of a membership contribution, a claim for annulment of a resolution adopted by the general meeting of a coop-erative), except for the rights to which provisions of labour law apply under sepa-rate laws. Therefore, they were deprived of procedural privileges connected with hearing a case in separate proceedings in employment matters.

As regards interpretation of Art. 476 § 1 (2) KPC, there is one more thing worth noting. I am thinking of a situation where the provisions of a civil-law con-tract concluded between the parties make reference to labour legislation. A ques-tion arises whether provisions of such contract can be considered separate laws within the meaning of Art. 476 § 1 (2) KPC. I think that the answer to this ques-tion should be negative because in my opinion the obligations are not sources of law in a material sense. I think that provisions of civil-law contracts cannot be, de lege lata, considered separate laws. The contrary interpretation would allow the parties to arbitrarily manipulate, outside the limits defined by the provisions

70 Regulation of the Council of Ministers of 31.12.1975 on the employee rights of persons per-forming cottage work (rozporządzenie Rady Ministrów z 31.12.1975 r. w sprawie uprawnień pracownic-zych osób wykonujących pracę nakładczą) (Journal of Laws [Dz.U.] of 1976, No. 3, item 19 as amended).

71 See for example: § 5, 10, 12 (4), Art. 14, 18 (2), Art. 19, 21 (1), Art. 23.72 See: E. Chmielek-Łubińska, Szczególne właściwości źródeł prawa pracy (Zagadnienia wybrane)

[Specific characteristics of sources of labour law (Selected problems)], Studia z zakresu prawa pracy i polityki społecznej [Labour law and social policy studies], Cracow 1999–2000, No. 5, p. 45–46.

73 As regards the members of labour cooperatives (spółdzielnie pracy), the general rules will apply. See a decision of the Supreme Court of 25.11.2009, II CZ 59/09, argument 2, Legalis.

§ 4. Matters involving claims arising out of other legal relationships...

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of procedural civil law, with the jurisdiction of courts, while the respective pro-visions in force are imperative.

§ 5. Actions for compensation against an employer in the event of accidents at work and occupational

diseases

According to Art. 476 § 1 (3) KPC, actions for compensation against a work establishment in the case of accidents at work and occupational diseases are clas-sified as labour law matters. The rationale for separation of such category of mat-ters is dependent mainly on the normative regulations of substantive law. The Act of 30.10.2002 on the social insurance in respect of accidents at work and occupa-tional diseases (ustawa o ubezpieczeniu społecznym z tytułu wypadków przy pracy i chorób zawodowych) adopted an insurance-based model of compensation for damages. As a result, benefits74 should be paid by insurance bodies. Therefore, de lege lata, disputes relating to such matters are considered social insurance dis-putes (Art. 476 § 2 KPC).

An exception are matters relating to payment to an employee of compensa-tion for loss of or damage to personal effects and items necessary to perform work as a result of an accident at work75. Under Art. 476 § 1 (3) KPC, the claims prescribed in Art. 2371 § 2 of the Labour Code (KP) fall within a competence of labour courts. Other matters which can be included in this category are disputes relating to application of Art. 56 (1) of the act of 30.10.200276.

74 The benefits prescribed in Art. 6 of the Act of 30.10.2002 were listed by K. Jaśkowski, E. Maniewska in: Kodeks pracy. Komentarz. Ustawy towarzyszące z orzecznictwem [Labour Law. A commentary. Accompanying regulations and case-law], Cracow 2003, p. 528–529.

75 See: G. Bieniek, Odpowiedzialność zakładu pracy za rzeczy pracownika [Responsibility of a work establishment for employee’s property], PiZS 1978, No. 12, p. 50 ff.; A. Nowak, Podstawy odpowiedzialności odszkodowawczej zakładu pracy za uszkodzenie lub zniszczenie rzeczy pra-cownika [Liability of a work establishment in respect of compensation for damage to or destruction of employee’s property], [in:] T. Zieliński (ed.), Z problematyki prawa pracy i polityki socjalnej [Labour law and social policy issues], vol. 4, Katowice 1981, p. 51 ff.

76 See a resolution of the Supreme Court of 20.5.2004, II PZP 6/04, OSNP 2004, No. 22, item 379.

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§ 6. Actions for a declaratory judgment in labour law matters

A purpose of an action for a declaratory judgment under employment re-lationship is to remove uncertainty in the labour relations. In theory, it should prevent violation of personal rights or determine the status of the parties to a le-gal relationship. Therefore, in the Polish legislative system the function of such action is mainly preventive77. Therefore, an action for a declaratory judgment78 should be brought against a party who questions existence of a right or a legal relationship or claims such rights. Therefore, it must also be clearly specified in material terms79. De lege lata, such declaratory actions are acceptable either un-der the general rules laid down in Art. 189 KPC or under specific provisions (for example Art. 476 § 1 (11) KPC).

In this context, it is significantly important to determine the relation between the general and the specific provisions. There are two possible interpretations. According to the first one, the mutual relations are subject to the lex specialis directive. This would mean that specific laws would autonomously specify the reasons for bringing actions in the situations specified in such laws, and would override the general rules. The second option provides that specific laws are sub-sidiary to Art. 189 KPC and they only adjust the mechanisms prescribed therein to the specific circumstances existing in the labour relations. Such unorthodox interpretation is supported by systemic and teleological arguments.

The overreaching objective of all declaratory actions (powództwa ustalające, powództwa o ustalenie) is to determine existence or non-existence of a legal re-lationship or right80. However, it should be emphasized that no demand can be raised to issue a declaratory judgment stating that a party is bound by specific legal provisions because the ruling of a court must be specific and must apply to a clearly specified personal right or legal relationship81. Therefore, a request to declare under Art. 189 KPC the existence of a legal relationship between the

77 See a judgment of the Supreme Court (SN) of 29.3.2001, I PKN 333/00, Prok. i Pr. 2002, No. 2, p. 43 and a judgment of 8.6.1999, I PKN 96/99, OSNAPiUS 2000, No. 16, item 615.

78 See a judgment of the Supreme Court of 4.1.2001, I CKN 425/00, Legalis.79 See a judgment of the Supreme Court of 22.9.1999, I PKN 263/99, OSNAPiUS 2001, No. 2,

item 36.80 See: T. Wyka, Prawo pracownika do powództwa (roszczenia) o ustalenie stosunku prawnego

lub prawa [Employee’s right to bring an action for a declaratory judgment], [in:] Z. Góral (ed.), Księga jubileuszowa Profesora Henryka Lewandowskiego [Anniversary book of professor Henryk Lewan-dowski], Warsaw 2009, p. 429 ff.; M. Mędrala, Funkcja ochronna… [The protective function...], p. 101 ff. and the literature referenced there.

81 See a judgment of the Supreme Court of 14.11.1964, I CR 304/64, Legalis.


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plaintiff and a person who is not a defendant in the case in question will not be effective82.

No facts can be established in the context of declaratory actions. This is be-cause the factual circumstances are only premises and not contents of the judg-ment. However, if establishment of fact is capable of creating rights, then the re-quest for establishing facts may be allowed if it is actually aimed at determination of existence or non-existence of a right or a legal relationship83.

In analysing the legal mechanism applicable in the case of declaratory ac-tions, it is worth noting that under Art. 189 KPC a conditio sine qua non for the effectiveness of such action is the existence of a legal interest on the part of the plaintiff84. According to the case-law of the Polish Supreme Court85 a legal inter-est exists when there is uncertainty as to the legal status or right86 and such un-certainty is objective. A decisive factor in this respect are circumstances of the case concerned and not subjective feelings of the applicant or a third party (such as for example a trade union87). A literal interpretation of Art. 189 KPC leads to a conclusion that only such legal interest may be the basis for the declaratory ac-tion in accordance with general rules. This is not the case in relation to actions for a declaratory judgment brought under specific laws. On the basis of lege non distinquente argument, I take the view that also other interests are involved, such as for example economic, social or personal interest, provided that these do not violate the rules of social coexistence88. In this regard the scope ratione mate-riae of the specific declaratory actions as compared with Art. 189 KPC is much broader.

Following the above considerations on the declaratory actions in the la-bour law, it should be stressed that such actions, brought either on the basis of general provisions or on the basis of specific provisions are inadmissible in a situation where it is possible to bring an action for performance (powództwo o świadczenie). Such standpoint has been well established in the case-law of the

82 See decisions of the Supreme Court of 7.4.1995, I PZP 12/95, OSNAPiUS 1995, No. 19, item 241.83 See a judgment of the Supreme Court of 19.8.2004, I PK 621/03, OSNP 2005, No. 9, item 125.84 In this regard see in that particular: E. Wengerek, Powództwo o ustalenie stosunku praw-

nego [An action for a declaratory judgment], Warsaw 1960, p. 14–15; T. Wyka, Prawo pracownika… [Worker’s right...], p. 435 ff.

85 See a judgment of the Polish Supreme Court of 16.12.1993, I CRN 141/93, Legalis.86 In the context of the arguments of the Supreme Court presented in the judgment of 28.7.1999,

I PKN 683/98, OSNAPiUS 2000, No. 20, item 751, an employee has no legal interest in an action brought against one employer to determine existence or non-existence of an employment relation-ship with another employer.

87 See argument 1 of the judgment of 24.6.1998, I PKN 186/98, OSNAPiUS 1999, No. 13, item 424.88 See a judgment of the Supreme Court of 27.6.2001, II CKN 898/00, Legalis and a decision of

the Supreme Court of 8.3.2010, II PK 240/09, argument 2, OSNP 2011, No. 17–18, item 232.

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Polish courts since the period of the Second Polish Republic89. It is presumed90 that a declaratory action is inadmissible if a dispute has already arisen as a result of violation of a right, or other form of legal protection is possible in a different procedure91. Only by way of an exception the case-law92 allows raising a demand to establish existence or non-existence of a right or a legal relationship „next” to the performance sought, and this is in a situation where there are further-reach-ing consequences of a disputable legal relationship which go beyond the scope of the action for performance. For example93, an employee may be interested in determination of his remuneration if the employer questions legitimate claims of the employee and therefore forces the latter to bring successive actions. However, de lege lata, a rule is that if the action for performance is brought, then the claim for determination of existence or non-existence of a right or a legal relationship cannot be pursued in parallel in the same proceedings94.

In undertaking the analysis of declaratory actions, I should start with the gen-eral rules laid down in Art. 189 KPC. It sets out the general directives applicable also to labour law actions. The starting point will be an observation that these may relate to any normative relations or obligation relations between an employ-ee and an employer. In personal terms, the term „employee” also for this category of matters was defined in Art. 476 § 5 (1) KPC.

As in the case of other categories of labour law matters, also in this case it is not possible to enumerate all the categories of declaratory actions under the la-bour law. It is only possible to illustrate them. The main types of such actions, concerning the terms of an employment relationship include:– declaratory action to determine the basis of employment95,– declaratory action to determine a type of a contract of employment,– declaratory action to determine a type of work,– declaratory action to determine the date of commencement of work,– declaratory action to determine the place of performance of work,

89 See a judgment of the Supreme Court of 6.10.1938, C II 480/38, Przegląd Prawa i Administracji im. E. Tilla 1939, No. 1, item 45.

90 See also: J. Skoczyński, Postępowanie sądowe w sprawach z zakresu prawa pracy i ubezpieczeń społecznych po nowelizacji kodeksu postępowania cywilnego [Judicial proceedings in labour law and social insurance matters after the amendment of the Code of Civil Procedure], PiZS 1996, No. 7, p. 27 ff.

91 See argument 3 in a judgment of the Supreme Court of 8.1.2001, I CKN 723/99, Legalis. 92 See a decision of the Supreme Court of 18.12.1992, III CZP 131/92, Legalis. See also a judg-

ment of the Supreme Court of 9.4.1980, I PRN 30/80, Sł. Prac. 1980, No. 10, p. 30 and a judgment of 14.9.1998, I PKN 334/98, OSNAPiUS 1989, No. 20, item 646.

93 A judgment of the Supreme Court of 11.11.1969, I PRN 60/69, Legalis.94 See a judgment of the Supreme Court of 11.2.1971, II PR 260/70, PiZS 1972, No. 3, p. 46 and

a judgment of 14.9.1998, I PKN 334/98, OSNAPiUS 1999, No. 20, item 646.95 See a judgment of the Supreme Court of 9.2.2000, I PKN 517/99, OSP 2002, No. 3, item 30

with a commentary of P. Kucharski.


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– declaratory action to determine the terms and conditions of an employment relationship,

– declaratory action to determine the scope of responsibilities of an employee,– declaratory action to determine the currency or exchange rate for payment of

remuneration,– declaratory action to determine invalidity of certain provisions of a contract

of employment,– declaratory action to determine invalidity of a non-compete agreement,– declaratory action to determine invalidity of a contract on joint financial li-

ability of employees96,– declaratory action to determine invalidity of autonomous clauses of a contract

of employment,– declaratory action to determine the applicable labour standards,– declaratory action to determine that an employee is subject to a special protec-

tion under employment relationship97,– declaratory action to determine non-existence of an obligation to reimburse

the costs incurred by the employer in connection with employee’s education during employment98,

– declaratory action to determine a „transfer” of an undertaking under Art. 231

of the Labour Code99,– declaratory action to determine invalidity of a competition for a post, if con-

ducted contrary to law,– declaratory action to determine the right to free acquisition of shares or the

period of employment required to obtain the right to free acquisition of em-ployee shares100,

– declaratory action to determine invalidity of a legal transaction,– declaratory action to determine that work has been performed in the condi-

tions harmful to health,– declaratory action to determine non-existence of a non-compete obligation101.

As regards declaratory actions in employment relations, certain doubts arise regarding admissibility of judicial declaration of facts capable of creating rights

96 See: A.M. Świątkowski, Komentarz do kodeksu pracy [Commentary to the Labour Code], vol. 1, Cracow 2002, p. 604–618.

97 See a decision of the Supreme Court of 10.3.2010, II PK 240/09, OSNP 2011, No. 17–18, item. 232, argument 2.

98 See a resolution of the Supreme Court of 19.7.1990, III PZP 13/90, PiZS 1991, No. 5–6, p. 67 with a commentary of U. Jackowiak.

99 See a judgment of the Supreme Court of 1.7.1999, I PKN 133/99, OSP 2001, No. 4, item 57 with a commentary of T. Kuczyński.

100 See a judgment of 19.3.2002, I PKN 959/00, OSNP 2004, No. 5, item 76.101 See a judgment of 11.1.2006, II PK 110/05, OSNP 2006, No. 23–24, item 346.

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(fakty prawotwórcze). The opinions presented in this regard in the case-law of the Supreme Court are diverging102. According to a prevailing view, a court may not declare invalidity103 of the statements of will of an employer or declare that there are no legal grounds104 for such statements. In particular this applies to termina-tion105 of an employment relationship where an employee intends to use a court ruling to prove that conditions were met to acquire the rights to social insur-ance benefits106. A similar mechanism applies in the event of a declaratory ac-tion against an employer to establish employment in specific conditions in order to obtain an unemployment allowance.

In addressing the topic of declaratory actions, I would like to stress that these are admissible in labour law matters if the subject-matter of a claim is establish-ment of facts which create personal rights. For that reason I support an unortho-dox opinion according to which an employee may demand, for example, estab-lishment of causes of a regime for termination of employment in connection with a dispute regarding the right to substitute accommodation or a company flat. This is not the case as regards declaratory actions regarding discretionary social ben-efits. In a judgment of 27.8.1986107, the Polish Supreme Court (SN) rightly held that claims for provision of free of charge workers’ holidays cannot be effectively pursued before labour courts, neither through a declaratory action (powództwo o ustalenie), nor through an action for performance (powództwo o świadczenie).

An important aspect of declaratory (judgment) actions is a question whether declaration under Art. 189 KPC of invalidity of specific sources of law is admis-sible. In the Polish labour legislative system the specific sources of law include collective agreements and other arrangements as well as any internal rules and statutes. As regards collective agreements, the Polish Supreme Court held, in a resolution of 23.5.2001108 that a company-level collective agreement cannot be declared invalid in court proceedings after it has been registered. It should be borne in mind that declaratory actions do not apply to disputes concerning valid-


103 See a resolution of the Supreme Court of 21.9.1989, III PZP 41/89, OSNCP 1992, No. 4, item 84 with a commentary of L. Sobol.

104 See a resolution of the Supreme Court of 24.2.1967, III PZP 41/66, OSNCP 1967, No. 11, item 191.


106 See a resolution of the Supreme Court of 3.11.1994, I PZP 45/94, OSNAPiUS 1995, No. 6, item 74.

107 See a judgment of the Supreme Court of 27.8.1986, I PRN 64/86, OSPiKA 1987, No. 9, item 182 with a commentary of A. Kijowski.

108 III ZP/17/00, OSNAPiUS 2001, No. 23, item 684.


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ity of sources of law, even if the latter involve obligations. This means that „other” collective arrangements within the meaning of Art. 9 § 1 KP cannot be declared invalid in court proceedings. Therefore, a simili, it seems reasonable to argue that this applies also to internal rules (regulaminy)109 and statutes (charters) (statuty) governing the labour relations.

Although in this normative context there are no doubts that a declaratory action to establish invalidity of labour law acts is generally inadmissible, I think that a party to an employment relationship may demand declaration by a court of non-existence of an obligation imposed on such party under specific (auton-omous) sources of labour law. Such interpretation is supported directly by the wording of Art. 189 of the Code of Civil Procedure.

A specific type of a declaratory judgment action is laid down in Art. 476 § 1 (11) KPC110. It provides for the possibility to determine existence of an em-ployment relationship if the relationship between the parties, contrary to a con-tract concluded between them, has the characteristics of an employment relation-ship. In some respects it is considered a specific provision in relation to Art. 189 KPC. Therefore, it should be interpreted strictly in accordance with the excep-tiones non sunt excendendae principle. This means that Art. 476 § 1 (11) KPC applies only in a situation where a contract has been concluded between an em-ploying entity and a contractor, other than a contract of employment (for exam-ple a civil-law contract), but the work performed under this legal relationship is or was performed under terms and conditions laid down in Art. 22 KP that is for and under the direction of the employer111 and at a place and time specified by the latter, against remuneration.

A literal formula of Art. 476 § 1 (11) KP allows concluding that this provision does not apply to non-contractual employment relationships. So the question arises whether in such situation an employee may demand declaration of exist-ence of an employment relationship112. The answer to such question should be negative. In my opinion an employee may seek declaration of existence of an em-ployment relationship in accordance with the general principles under Art. 189 KPC. He should only prove a legal interest in obtainment of such declaration. In the case of actions based on Art. 476 § 1 (11) KPC, the plaintiff is not obliged

109 According to a judgment of the Supreme Court of 6.12.2001, I PKN 355/00, OSNAPiUS 2002, No. 12, item 13 a declaratory judgment action regarding invalidity of company social benefits fund regulations (zakładowy regulamin świadczeń socjalnych) is inadmissible.

110 See: A. Góra-Błaszczykowska, Postępowanie w sprawach o ustalenie istnienia umowy o pracę – uwagi [Declaratory action to determine existence of a contract of employment – remarks], MoPr 2005, No. 6, p. 153 ff.


112 See a judgment of the Supreme Court of 21.11.2000, I PKN 90/00, PP 2001, No. 5, item 34.

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to prove it because this provision does not provide for such condition113. The sub-stantive justification for the proposed interpretation can be found in the expressio unius exclusio alterius principle.

The differentiation introduced by this provision among the declaratory ac-tions for determination of existence of an employment relationship114 seems unnecessary. Article 476 § 1 (11) KPC is a classic example of multiplication of normative entities beyond necessity. At the procedural level, what seems to be a sufficient guarantee of implementation of directives laid down in Art. 22 KP are provisions of Art. 4771 § 11 KPC115. The latter does not differentiate the types of declaratory actions for determination of existence of an employment relation-ship, and at the functional level it establishes necessary mechanisms for the pro-tection of employee’s interests.

§ 7. Collective labour law matters

To define, at the theoretical level, the concept of collective labour law mat-ters, I consider that they concern collective rights or obligations of workers or employers or of their representative organisations. First, it should be emphasized that this category of matters falls under jurisdiction of labour courts only where it is explicitly provided for in a specific provision. In the Polish labour legislation system a court jurisdiction in collective matters is exceptional116. Its ratio legis is to strengthen the legal certainty and to guarantee respect of the rule of law in industrial relations.

Similarly as in the case of declaratory actions brought in accordance with the general principles, the category of matters mentioned here does not fall within the personal and material scope of Art. 476 § 1 KPC. Collective labour law mat-ters, as an autonomous category, enjoy the status of labour law matters within the

113 See also a decision of the Supreme Court of 25.8.1998, I PKN 241/98, OSNAPiUS 1999, No. 17, item 553.

114 See a judgment of the Supreme Court of 20.8.2001, I PKN 594/00, OSNAPiUS 2002, No. 3, item 8, insert.

115 See argument 2 of a judgment of the Supreme Court (SN) of 12.1.1999, I PKN 535/98, OSNAPiUS 2000, No. 5, item 175. See also: D. Duda, Ciężar dowodu przed sądem pracy [Burden of proof before a labour court], MoP 2001, No. 1, p. 13; J. Iwulski, Udział inspektora pracy w postępowaniu o ustalenie istnienia stosunku pracy [Participation of a labour inspector in the declaratory judgment pro-ceedings], PiZS 1998, No. 9, p. 25 ff.; S. Płażek, Czy inspektor pracy może samodzielnie kwalifikować umowy [Can a labour inspector independently classify contracts?], PiZS 1997, No. 9, p. 38.

116 See: W. Sanetra, Sądy wobec sporów z zakresu zbiorowego prawa pracy [Courts and the col-lective labour law disputes], [in:] G. Goździewicz (ed.), Zbiorowe prawo… [Collective labour law...], Toruń 2000, p. 257 ff.


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meaning of Art. 1 KPC. This is because that provision does not introduce any dif-ferentiation between individual and collective labour law.

I will start the analysis of jurisdiction of labour courts in the collective labour law matters from matters concerning declaration of representativeness of trade unions and employers’ organisations. The starting point will be an observation that matters concerning both the general representativeness117 and representa-tiveness in respect of collective agreements fall under the jurisdiction of labour courts.

The subject of all categories of matters concerning declaration of represent-ativeness is verification, in non-contentious proceedings, of normative factors defining a representative trade union organisation or employers’ organisation. In this respect the function of courts is primarily to guarantee respect for cer-tainty and rule of law in the legal relations.

Under Art. 24117 § 3 KP the exclusive jurisdiction in matters regarding representativeness to enter into a sectoral collective agreement lies with a Re-gional Court in Warsaw118. A similar jurisdictional mechanism applies in the case of declaration of general representativeness of trade unions and employ-ers’ organisations under Art. 8 of the Act of 6.7.2001 on the Tripartite Commis-sion for Social and Economic Affairs (Trójstronna Komisja do Spraw Społeczno-Gospodarczych) and on the regional commissions of social dialogue119. On the other hand, matters regarding declaration of representativeness of trade unions to enter into a collective agreement120, at the company level, fall under the jurisdic-tion of district labour courts. The provisions of the Labour Code governing the internal procedure for collective agreements do not provide for obligatory dec-laration of representativeness before court as is the case with sectoral collective agreements. The reason for this is that at the company level the parties are usually aware of the number of particular organisations. However, if there are any doubts in this regard, both the employer and each company or intercompany trade un-ion organisation may, even before commencement of collective bargaining, raise objections to other participants in the collective bargaining. From a teleological point of view, the objections should be in writing. In such case the entity with whom the objection was filed must apply to a district court – a labour court at

117 See: M. Seweryński, Problemy statusu prawnego związków zawodowych [Legal status of trade unions], [in:] G. Goździewicz (ed.), Zbiorowe… [Collective...], p. 133.

118 See: A. Paszek, Problem reprezentatywności związków zawodowych w prawie pracy [Represent-ativeness of trade unions in labour law], PiZS 2000, No. 2, p. 26 ff; J. Stelina, Pojęcie reprezentatywności związku zawodowego [A concept of representativeness of a trade union], PiZS 1995, No. 3, p. 56 ff.; J. Piątkowski, [in:] K.W. Baran (ed.), Kodeks pracy. Komentarz [Labour Code. Commentary], Warsaw 2012, p. 1257 ff.

119 Journal of Laws [Dz.U.] of 2001, No. 100, item 1080 as amended.120 See Art. 24125a § 5 KP.

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the seat of the employer – for declaration of its representativeness. The court should, within 30 days from the date of filing the application, issue a respective ruling in accordance with the provisions of the Code of Civil Procedure on non-contentious proceedings.

The principle of legality is a guiding principle for labour courts also in matters regarding registration of collective agreements121. They hear appeals against deci-sions of administrative registration bodies and appeals within objections proce-dure (procedura zastrzeżeniowa). Such matters are not labour law matters within the meaning of Art. 476 § 1 KPC.

According to Art. 24111 § 5 KP, the parties may appeal to a labour court within 30 days from notification of refusal to register a collective agreement. The dead-line of 30 days is preclusive. It may be neither shortened nor extended. Moreover, the rights with respect to such time-limit cannot be re-established by the court. The provisions of Art. 168 KPC do not apply.

The matters concerning refusal to register a collective agreement are heard in non-contentious proceedings (postępowanie nieprocesowe). The appeal against a decision of the registration authority is in fact an application for opening non-contentious proceedings. Therefore, it should meet the requirements laid down in the provisions governing the statement of claim, except that instead of a de-fendant there should be interested parties indicated (Art. 511 KPC in connec-tion with Art. 2411 § 5 KP). A status of an interested party in such category of matters is granted to the parties to a collective agreement and an administrative registration authority.

In a matter regarding refusal to register a collective agreement a labour court of first instance issues a decision. Because of the fact that this is a ruling on the merits of the case (Art. 518 KPC), the parties have the right to appeal. In the case of a sectoral collective agreement, the appeal is heard by a Department of La-bour and Social Insurance of the Court of Appeals in Warsaw (Wydział Pracy i Ubezpieczeń Społecznych Sądu Apelacyjnego w Warszawie), and in the case of a company-level collective agreement – a department of labour and social insur-ance of a territorially competent regional court. Other decisions issued in the proceedings before a court of the first instance, in the cases specified by law, may be challenged by grievance/complaint (zażalenie).

There is no right of cassation appeal (kasacja) against a decision of the court of the second instance ruling on the merits on the refusal to register a collec-

121 See: W. Sanetra, W sprawie rejestracji niezgodnego z prawem układu zbiorowego pracy [Reg-istration of illegal collective agreement], PiZS 1996, No. 2, p. 38 ff; A. Hintz, Doświadczenia Państwowej Inspekcji Pracy w zakresie rejestracji zakładowych układów zbiorowych pracy [Experiences of the National Labour Inspectorate in registration of collective agreements], PiZS 1998, No. 2, p. 31 ff.


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tive agreement. This can be explicitly concluded from a textual interpretation of Art. 5191 § 3 KPC.

In analysing the jurisdiction of labour courts in collective labour law matters, it should be stressed that they are not competent in matters regarding registra-tion of trade unions and employers’ organisations122. Under the Polish legislative system such organisations are subject to mandatory registration in the National Court Register (Krajowy Rejestr Sądowy). De lege lata, such matters are not at all considered labour law matters within the meaning of Art. 1 KPC.

122 See: K.W. Baran, Procedury rejestrowe w zbiorowym prawie pracy [Registration procedures in collective labour law], [in:] B.M. Ćwiertniak (ed.), Prawo pracy, ubezpieczenia społeczne, polityka społeczna. Wybrane zagadnienia [Labour law, social insurance, social policy. Selected problems], Opole 1998, p. 279 ff.

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Chapter 5. Procedures for the amicable resolution of individual labour disputes

K.W. Baran

§ 1. Introduction

The principle of amicable resolution of labour disputes has been applied in the Polish legislative system for more than twenty years. It is explicitly worded in Art. 243 of the Labour Code (KP). It provides that both an employer and an em-ployee should seek amicable resolution of a dispute arising out of an employment relationship. Because of the fact that this provision was included among general provisions of Chapter XII of the Labour Code, it means, according to a rubrica argumentation, that it applies to all forms and stages of individual labour dis-putes. Its scope ratione materiae is not limited to the matters involving claims arising out of employment relationship but, under the lege non distinquente ar-gument, it applies to all disputes relating to such relationship, also these not in-volving claims.

Breach of the provisions of Art. 243 KP does not cause any negative conse-quences to the addressees of that provision. Therefore, it is reasonable to include it into the category of provisions specified as lege imperfecta. It only indicates a socially useful attitude in the event of a labour dispute. It is not mandatory be-cause there are no effective normative instruments to verify whether it affects the behaviour of the parties to which it is addressed.

The amicable resolution of individual labour disputes is based on mediation method. Mediation consists in intermediation by a third party, aimed at resolu-tion of a dispute through an agreement between the parties, without the use of coercive measures. The essence of the mediation is that such third party, called a mediator to whom the dispute was referred, is acting as a liaison between the parties involved and provides them with necessary assistance in development of a resolution of the dispute acceptable to both of the parties and voluntary. Unlike

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in the case of a settlement agreement, this does not have to involve concessions on both sides. Therefore, in the context of formal logic, it is reasonable to con-clude that every settlement is a voluntary agreement but not every voluntary agreement is a settlement. The amicable (irenic) resolution of a dispute occurs also where claims of one of the parties were fully satisfied or the party waived the right to pursue the claims and withdrew the request for legal protection.

There are two main homologous models in the amicable (irenic) proce-dures: the judicial (court) model and the extrajudicial (out-of-court) model. In the judicial model the mediation is conducted by a court enjoying the status of a judiciary authority within the meaning of Art. 175 of the Polish Constitu-tion and in the extrajudicial model – by an entity without such status, regard-less of the statutory name of such entity. Between these two extreme models, the Polish legislative system has introduced also a heterogeneous (mixed) model, in which both the courts and the out-of-court bodies are involved. To be more spe-cific, I include in the judicial model a judicial conciliation procedure (sądowe postępowanie pojednawcze) (Art. 184–186 KPC) and a mediation conducted in the course of the pending trial (Art. 10 and 468 § 2 (2) KPC). And as regards the extrajudicial model, I include in it a workplace conciliation procedure (zakładowe postępowanie pojednawcze) (Art. 244 et seq. KP). On the other hand, the heter-ogeneous procedures are those conducted by the mediator in accordance with a procedure laid down in Art. 1831–15 KPC and those conducted by arbitration tribunals (Art. 1164 KPC) since both judicial and non-judicial bodies act in such proceedings.

§ 2. Out-of-court conciliation procedure

2.1. Legal bases of proceedings before the conciliation commissions

The statutory basis for the out-of-court conciliation procedure1 are provisions of the Labour Code (KP). I am thinking here of Art. 244–261 KP. However, be-cause of their generality, the mentioned provisions need clarification. Therefore, the Labour Code provides for the right of a conciliation commission to adopt the

1 As regards the out-of-court conciliation procedure, see: K.W. Baran, Status prawny komisji po-jednawczych po nowelizacji kodeksu pracy z 2.2.1996 r. [Legal status of conciliation commissions after the amendment of the Labour Code of 2.2.1996], St.Pr.PiPSp, Cracow 1997, No. 3, p. 327 ff.; M.T. Romer, Pojednanie w prawie pracy [Conciliation in labour law], PP 1997, No. 1, p. 3 ff.; M. Mędrala, Funkcja ochronna… [The protective function…], p. 351 ff.

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rules of procedure2 for workplace conciliation. The mentioned statutory quasi-delegation is laid down in Art. 247 KP. The analysis of that article implies that it is an imperative provision. Therefore, failure on the part of the commission to adopt the rules of procedure should be classified as breach of mandatory provi-sions of labour law. If such situation occurs, it needs to be changed by an appro-priate intervention of the founding bodies.

The rules of the extrajudicial conciliation procedure constitute internal (workplace) sources of labour law3. Because of the provisions of Art. 247 KP, it seems reasonable to argue that the standards established there are sanctioned by the state. It should now be emphasized that these are not generally applicable legal norms within the meaning of Art. 87 of the Constitution. The mentioned rules of procedure are a set of directives addressed to the participants in the me-diation procedure conducted by the conciliation commissions. In this context a question arises what conditions should be met by such rules. First, they should be in compliance with applicable laws. In particular, they must not be contrary to legislative provisions, for example they must not exclude participation of a lawyer representing an employee. Any provisions of such rules of procedure conflicting with legislative provisions should be considered invalid and thus not applicable. Such opinion is based on an argument according to which implementing provi-sions of a lower rank cannot repeal the provisions of the higher rank.

The rules of workplace conciliation procedure are intended to be a legal in-strument fostering amicable resolution of labour disputes. From praxeological point of view, they should be simple and not formalised4. The objective of each irenic procedure is to end a dispute with the use of the simplest techniques and the most effective measures. Simplification of the mediation procedure will al-low the workers to pursue their claims without formal restrictions requiring in-depth knowledge of law.

In analysing the legal bases of the mediation procedure, a problem arises whether apart from the provisions mentioned above the conciliation commis-sions may apply in the alternative, in the course of the procedure, any other legal norms. In particular, it should be considered whether the Code of Civil Proce-dure (KPC) or the Code of Administrative Procedure (KPA) may be applied in such procedure. In my opinion, application of the provisions of the Code of Civil

2 See: W. Tomyn, Postępowanie przed komisjami pojednawczymi [Proceedings before concili-ation commissions], Warsaw 1985, p. 14–15; J. Piątkowski, [in:] K.W. Baran (ed.), Kodeks pracy. Ko-mentarz [Labour Code. Commentary], Warsaw 2012, p. 1316.

3 See: E. Chmielek-Łubińska, Szczególne właściwości źródeł prawa pracy [Specific characteristics of sources of labour law], St.Pr.PiPSp 1999–2000, p. 40 ff.

4 See: K.W. Baran, Ugodowe likwidowanie sporów o roszczenia ze stosunku pracy [Amicable resolution of labour disputes], Cracow 1992, passim.


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Procedure or the Code of Administrative Procedure in the extrajudicial concili-ation procedure is unacceptable. As regards the Code of Civil Procedure, it ap-plies exclusively in court proceedings5. This is clear from the wording of Art. 1 of that Code which provides that the Code of Civil Procedure governs judicial proceedings in civil matters. The fact is that legal norms governing the media-tion procedure (Art. 255 § 2 KP) refer to the application of the Code of Civil Pro-cedure for implementation of the provisions of a settlement agreement because the mediation procedure ends upon conclusion of the said settlement between the employee and the employer. However, the enforcement of the settlement falls within the competence of enforcement authorities.

As is the case with the Code of Civil Procedure, in my opinion also the provi-sions of the Code of Administrative Procedure cannot be applied in the out-of-court conciliation procedure. Such interpretation is supported in particular by the provisions of Art. 1 of that Code. The mentioned article precisely specifies when and by whom the Code of Administrative Procedure may be applied6. It does not mention the social legal protection authorities hearing disputes in-volving claims arising out of employment relationship. Moreover, it should not be forgotten that the normative mechanisms adopted in that Code are completely useless in the mediation activity in industrial relations.

2.2. Actors involved in the out-of-court conciliation procedure

The participants in the conciliation procedure are actors7 participating in such procedure in their capacity specified by the provisions governing the me-diation procedure in disputes involving claims arising out of employment rela-tionship. The main actor in the out-of-court conciliation procedure is a concili-ation commission (komisja pojednawcza). It is a legal protection body, directing the course of the entire proceedings.

I will discuss it in detail further in this book. I should now pay some attention to other actors in the procedure. Particular focus should be put on the chairman of the commission8. He has many important functions in the mediation process. Apparently, next to the conciliation commission, he is the second key actor in the proceedings and this is because he directs all the activities of the commission.

5 J. Jodłowski, Z. Resich, J. Lapierre, T. Misiuk-Jodłowska, Postępowanie cywilne [Civil law pro-ceedings], Warsaw 1996, p. 10.

6 See: M. Jaśkowska, A. Wróbel, Kodeks postępowania administracyjnego. Komentarz [Code of Administrative Procedure. Commentary], Crakow 2000, passim.

7 See: K.W. Baran, Ugodowe... [Amicable...], p. 145 ff.8 See: A.M. Świątkowski, Komentarz… [Commentary…], p. 443.

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On the basis of an analysis of provisions of the Labour Code and the workplace rules of procedure before the conciliation commissions, the chairman should:– become acquainted with the applications filed with the commission by the

employees,– establish jurisdiction of the commission,– inform the management of the employer of the disputes referred to the com-

mission for resolution,– undertake mediation activity during the initial phase of a dispute (mediation

survey),– schedule the timing of the conciliation meetings,– appoint members of the commission to conduct meetings,– take decisions regarding requests for exclusion of a member of the commission

if there are doubts as to his impartiality,– summon the participants in the proceedings and issue any other orders to

prepare the proceedings,– control the purpose and legitimacy of adjournment and interruption of meet-

ings,– forward the files of the case to court upon employee’s demand, if the procedure

before the commission did not end with a settlement,– prepare reports on the activity of the commission if the „founders” wish that,– ensure the efficiency, correctness and timeliness of office services for the com-

mission.The presented list of powers of the chairman of the conciliation commission

clearly indicates that the chairman is the key organiser and coordinator of all the mediation activities undertaken by the commission. First of all, he should ensure respect for rights and legitimate interests of the parties to the out-of-court concili-ation procedure and respect by the participants in such proceedings of the provi-sions governing the course of the mediation procedure.

Now I would like to focus on the parties to the out-of-court conciliation proce-dure. First I should clarify how I understand the term „party”. Without going into detailed legal and theoretical deliberations, for the purposes of this study, a party means on one hand an entity raising certain demands in the out-of-court concili-ation procedure based on substantive law and on the other hand an entity against which such demand is addressed. My intention is to emphasize the diverging in-terests which must exist between the parties to an employment relationship so that they can be considered parties to a dispute arising out of such relationship. In more general terms, a party to the discussed proceedings is an entity involved in a dispute concerning the rights and obligations arising out of an employment relationship.

The definition of a party itself implies that the out-of-court conciliation pro-cedure is bipartite. This is a consequence of a praxeological principle according


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to which nobody can be in a dispute with oneself. So the question remains who exactly is a party to the dispute heard by the conciliation commission. Accord-ing to the wording of Art. 242 § 2 KP it may be concluded that these are: an em-ployee and an employer.

According to Art. 242 § 2 KP, only an employee is entitled to demand initia-tion of a conciliation procedure prior to bringing the case before court. A con-trario, it seems reasonable to argue that an employer is not entitled to do that. The law specifies, expressis verbis, which one of the parties to an employment re-lationship is entitled to initiate the procedure before the conciliation commission. Therefore, it may be concluded that a model out-of-court conciliation procedure is one-directional in such sense that an employee is always a „plaintiff ” and an employer is always a „defendant”.

If it is established that the procedure has been initiated upon request of an employer, the request should be dismissed. If, however, a settlement was con-cluded in such proceedings between the employer and the employee, then such settlement – in my opinion – is not invalid but only lacks one characteristic of a conciliation settlement, which is enforceability in court enforcement proceed-ings. Therefore, in terms of enforceability, it should be treated as out-of-court settlement in a strict sense. Such opinion is based on the assumption that such settlement was concluded outside the area of competence of the conciliation commission which, however, does not affect its substantive validity.

In the out-of-court conciliation procedure a party may be represented by a procedural representative. The amended Labour Code does not specify the en-tities entitled to such representation. Therefore, a procedural representative of an employee may be:– a representative of a trade union,– other employee of the same establishment,– a member of employee’s family,– a professional lawyer (adwokat, radca prawny).

It should be noted that the rules of procedure of the commission cannot re-strict the rights set out in statutory provisions (such as Lawyers’ Act – ustawa o adwokaturze).

In the workplace mediation procedure the employer is usually represented by a professional lawyer (adwokat, radca prawny). There are no legal obstacles to appointment of another employee to be the procedural representative, for ex-ample an employee authorised to perform acts in labour law under Art. 31 KP9.

9 See: K.W. Baran, [in:] K.W. Baran (ed.), Kodeks pracy. Komentarz [Labour Code. Commen-tary], Warsaw 2012, p. 37 ff.

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2.3. The conduct of the out-of-court conciliation procedure

The main characteristic of the out-of-court conciliation procedure is that it is optional10. This is stipulated in Art. 242 § 2 KP which provides that an em-ployee may pursue his claims before a conciliation commission. This means that the law does not provide for a mandatory conciliation procedure in individual labour disputes. This provision raised some controversy11 during the discussion on the reform of the system of legal protection authorities hearing individual la-bour disputes. In particular, it was pointed out that the optionality of that proce-dure will result in disappearance of the conciliation commissions. This was con-firmed in practice.

In my opinion it is a result of lack of confidence of employees in these bodies. It seems that an important factor determining the mentioned lack of confidence and at the same time lack of interest in the out-of-court conciliation procedure among employees is also a lack of confidence in the effectiveness of actions of such commissions. Moreover, similarly important is a psychological mechanism where an employee does not want his colleagues to deal with the dispute between him and the management of the work establishment. Consequently, because of the op-tionality of the conciliation procedure, its application is minimal12. It seems that a panacea for this could not be the obligatory out-of-court mediation procedures. It would only increase the social costs of resolution of individual labour disputes and would thus undermine the principle of procedural economy. This principle is a praxeological directive according to which unnecessary expenses should be avoided in the process of resolution of disputes. In my opinion, this principle would be violated in the out-of-court conciliation procedure if the law required in each case when there is a dispute between an employee and an employer aris-ing out of employment relationship that mediation be carried out ex officio, even

10 See: J. Wiśniewski, Koncepcja zakładowego postępowania pojednawczego w sprawach pra-cowniczych [A concept of workplace conciliation procedure in labour matters], PiZS 1984, No. 10, p. 32 and 33. See also: M. Święcicki, Element rozjemstwa w rozstrzyganiu sporów pracy [An element of conciliation in resolution of labour disputes], PiP 1961, No. 4–5, p. 601 ff.

11 See: G. Bieniek, Sądownictwo pracy… [Labour courts…], p. 3–8; A. Patulski, Sprawność sys-temu… [Efficiency of the dispute…], op. cit., p. 50; Z. Masternak, W. Sanetra, Komisje rozjemcze – zastrzeżenia i zalety [Reconciliation commissions – pros and cons], Gazeta Prawnicza 1981, No. 7–8, p. 5–6; S. Dalka, Idea jednolitego… [A concept of uniform…], [in:] M. Jędrzejewska, T. Ereciński (eds), Studia z postępowania cywilnego. Księga pamiątkowa ku czci Zbigniewa Resicha [Studies on civil procedure. Memorial book dedicated to Zbigniew Resich], Warsaw 1985, p. 70–71; K. Korzan, Znaczenie jedności… [The uniformity…], p. 64–65.

12 See also: A. Kijowski, [in:] T. Zieliński (ed.), Kodeks pracy. Komentarz [Labour Code. Com-mentary], Warsaw 2000, p. 1097–1098.


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where one of the parties ostentatiously manifests lack of will to reach an agree-ment. In such situation it would be difficult to expect the parties involved in a dis-pute to negotiate a compromise that would be the basis for a conciliation settle-ment. In this context it seems fully reasonable to argue that the voluntary nature of the conciliation procedure is derived from the essence of the amicable resolution of labour disputes. An obligatory mediation might in some instances reinforce the differences between the parties to an employment relationship.

According to the principle of dispositiveness, the conciliation procedure is initiated upon request of an employee. If such request is filed, the commission must open and continue the procedure (Art. 248 § 1 KP). The formal require-ments to be met by the request are laid down in the rules of procedure. It should only be noted that it must specify the demand raised by the employee and the facts on which such demand is based. This will allow the commission and the opposite party to know the subject-matter of the dispute and to make a prelimi-nary legal classification. There are no statutory obstacles to specifying in the re-quest the legal basis of the claim or even to setting out in it the proposals aimed at mitigation of the conflict.

As regards the form of the request, it may be filed either in writing13 or orally on the record (Art. 248 c 1 first sentence of the Labour Code). This is in compli-ance with a directive of limited formalism applicable in the conciliation proce-dure. At this stage of the process it is extremely important that the recipient of the request records the date of submission of the application (Art. 248 § 2 in con-nection with Art. 264 § 1 KP)14.

Admission of the request opens the out-of-court conciliation procedure. It starts with verification of jurisdiction of the commission by the chairman or other authorised member. This should be done immediately, as soon as the cir-cumstances allow. This is based on the principle of speed of process. If the com-mission is found to be incompetent, no further steps are taken in the proceedings and the request for conciliation is dismissed and returned to the employee with indication of a body competent to hear the case. The chairman may, upon con-sent of the applicant, transfer the case directly to that body. Moreover, the request should be returned in the event of pending lawsuit (lis pendens), a thing adjudged (res iudicata) and where the deadlines to assert claims have expired (Art. 251 § 2 in connection with Art. 264 KP)15. In the cases mentioned above, the chairman of the commission should inform the employee and advise him of his rights.

13 It is in the interest of the employee to prepare the request in two copies. This will facilitate service of one copy upon the management of the establishment and will accelerate the proceedings.

14 See: A. Świątkowski, Komentarz... [Commentary...], p. 444.15 See: W. Patulski, [in:] W. Muszalski (ed.), Kodeks pracy. Komentarz [Labour Code. Commen-

tary], Warsaw 2001, p. 1275–1277.

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After the commission is declared competent to hear the case, the chairman should familiarise with the contents of the request a person who is responsible for taking decisions (on behalf of the employer) on the acceptance of claims pur-sued by the employee. The purpose of it is to check whether amicable resolution of the dispute is possible. On such basis the chairman should decide to continue the procedure if he finds that the standpoints presented by the parties are promis-ing and settlement is possible. Only in such situation the decision will be in com-pliance with the principle of procedural economy. Carrying out the procedure in a situation when it is clear in advance that it cannot be successful would consti-tute an abuse of financial means. The commission must notify the parties of its decision not to pursue the case.

If the conflict is not resolved amicably at the initial stage, the chairman of the commission will schedule the date of the conciliation meeting in such a manner as to ensure that the procedure ends within two weeks of submission of the re-quest for conciliation16. He should also appoint members (team) to carry out the procedure. In such event the principle of individual designation should apply, unless the rules of procedure specify otherwise. It is possible to imagine a ran-dom selection of the members of the mediation body. The commission hears a case in 3-member panels. However, the law clearly provides for the possibility to enlarge the panel. According to Art. 249 KP the panel consists of at least three members of the commission17. Therefore, there is nothing to prevent appoint-ment, in more complicated matters, „personally” stronger panels. In no event the panel may be less than three persons. This would be in violation of statutory provisions. However, in my opinion, if a settlement agreement is concluded be-fore improperly composed commission, it does not affect its validity in substan-tive terms. It should also be considered possible to change the composition of the panel hearing the case during the break in the meeting.

The commission hears cases during the meeting to which parties and other persons whose presence is considered necessary are summoned. The date of the meeting should be notified duly in advance so that the participants have the op-portunity to prepare to that meeting. The form of the summons should be appro-priate to the circumstances (e.g. written, text message). This is a consequence of the principle of limited formalism applicable in this procedure. The notification is considered made if it is clear that it reached the addressee in due time. In the

16 See: L. Brzozowski, Zmiany w przepisach o rozstrzyganiu sporów z zakresu prawa pracy i ubezpieczeń społecznych [Amendments to the provisions on resolution of labour law and social in-surance disputes], Sł. Prac. 1985, No. 6, p. 8–9.

17 See: A. Świątkowski, Komentarz... [Commentary...], vol. 2, p. 445.


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case of any doubt as to whether the summons has been served, the commission must adjourn the meeting.

The meeting is conducted by the chairman of the conciliation panel. It starts with a report during which the chairman familiarizes the participants with the subject-matter and merits of the dispute. The report should include a compre-hensive presentation of all relevant circumstances, including the terms and con-ditions of the planned settlement. Next, the parties should present their propos-als concerning resolution of the conflict. An employee may change or clarify his claims because at this stage of the procedure the parties should fully explain their positions. If the circumstances invoked by the parties raise doubts, the chairman may order that preliminary inquiries be conducted. Such preliminary inquiries should cover all relevant facts. For that purpose the commission may, upon con-sent of the participants, examine the documents, hear the witnesses and even ex-pert witnesses18. The establishment of the contested facts may, in some disputes, cause a party who is not right to enter into a settlement agreement. Therefore, it is an instrument which facilitates achievement of a compromise.

During the meeting a member of the commission who is a chairman of the panel should act in such a manner as to ensure that the positions of the parties are reconciled as far as possible. One of the factors of success is the proposals made by him. Acceptance of the latter is dependent on the impartiality and objectivity of the commission. In particular, any form of pressure on the employee is unac-ceptable. Any such conduct should be considered a breach of law. It may result in bringing an action before a labour court for declaration of ineffectiveness of the settlement under Art. 256 KP19.

A conciliation meeting is open. In exceptional circumstances a chairman of the conciliation panel may, following a reasonable request of a party, order that the meeting should be held in camera. This is justified where a party has a legiti-mate interest or if there is a risk of disclosure of a state secret or business secret. If such need arises – for the sake of order – persons who disrupt the conduct of the meeting may be removed from the room where the meeting is held.

The legislature limited the timeframe of the conciliation procedure. Accord-ing to Art. 251 § 1 first sentence KPC it should end within 14 days of submission of the request. The time-limit is only indicative (termin instrukcyjny) as suggest-ed by the word „should”. If, however, due to specific obstacles, the procedure has lasted longer, it will end, by operation of law, on the thirtieth day from the date of

18 The laws do not specify which one of the participants should finance the expert study. In my opinion the costs should be borne by the party who applied for the appointment of the expert witness. The parties may agree otherwise in the settlement agreement.

19 See: J. Skoczyński, [in:] Z. Salwa (ed.), Kodeks pracy. Komentarz [Labour Code. Commentary], Warsaw 2000, p. 718.

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receipt of the request (Art. 251 § 3 KP). In the case of a dispute concerning ter-mination, expiration or entry into an employment relationship, the time-limit is 14 days (Art. 251 in connection with Art. 264 KP)20. In my opinion, conclusion of a settlement agreement following the „expiration” of the conciliation proce-dure does not affect, in material terms, the validity of the settlement agreement but deprives it of the status of conciliation settlement.

The conciliation procedure ends with a settlement21 or absence of a settle-ment. If the proposed terms are accepted by both parties, they enter into a settle-ment agreement. The essence of such settlement agreement are mutual conces-sions. The commission is merely a „catalyst” for conciliation between the parties in a dispute. However, it cannot be treated as a co-participant in the settlement22. Therefore, the members of the commission do not have to sign the settlement.

The wording of the settlement agreement should be such as not to raise doubts concerning its interpretation or cause difficulties in the enforcement pro-cedure. In particular, it must specify the scope of mutual obligations of the parties by specifying the benefits/performances and their due dates.

The main task of the commission is to control the substantive provisions of the settlement agreement. This regards in particular its compliance with law. Sometimes it may be difficult because members of the commission may have poor knowledge of labour laws. If the commission finds that there is an infringe-ment of law or of the rules of social coexistence, it will refuse to enter the settle-ment agreement into the minutes. As a consequence, the court will not be able to declare enforceability, and therefore the possibility to enforce the provisions of the settlement agreement in the enforcement procedure will be excluded.

The enforcement of the settlement agreement concluded before the concili-ation commission may be voluntary, through performance/payment of a bene-fit due. However, if the employer fails to perform within the agreed time-limit, compulsory performance is possible. For this to happen, an employee or employ-ee’s representative must apply to a court for an enforceability clause. Together with the settlement agreement it constitutes an instrument permitting enforce-ment in accordance with the procedure laid down in the Code of Civil Procedure (Art. 255 § 1 KP)23. At this stage the court controls, ex officio, the compliance

20 The time-limit is calculated in accordance with the rules laid down in Art. 111 et seq. of the Civil Code [KC].

21 A judgment of a Court of Appeal [SA] in Warsaw of 28.3.1996, III APr 11/96, OSA 1997, No. 1, item 4.

22 B. Błachowska, Ugodowe załatwianie sporów przed komisjami rozjemczymi i odwoławczymi oraz przed okręgowymi sądami pracy [Amicable resolution of disputes before conciliation commissions and appeal commissions and before the regional labour courts], PiZS 1981, No. 10–11, p. 28–29.

23 See: Z. Świeboda, Rozstrzyganie sporów w sprawach z zakresu prawa pracy i ubezpieczeń społecznych [Resolution of disputes in labour law and social insurance matters], NP 1985, No. 8, p. 29.


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of the settlement agreement with law and with the rules of social coexistence. If such irregularities are identified, it will result in refusal to declare enforceabil-ity (Art. 255 § 2 first sentence). In such event the settlement is ineffective in the sense that it is not possible to seek enforcement of its provisions in accordance with the procedure laid down in the Code of Civil Procedure.

If the parties do not reach an agreement within the statutory time-limit, the chairman of the commission should make a respective note in the minutes end-ing the procedure. In such event the chairman should advise the employee on the right to bring an action in the labour court and, upon employee’s request, should refer the case to a competent court within 14 days of the end of the proce-dure. The request for conciliation replaces the statement of claim (Art. 254 KP)24. This ensures full respect for the interests of the applicant and is in compliance with the principle of optionality of the conciliation procedure.

§ 3. Mediation in labour law matters

A heterogeneous mediation procedure is regulated in Art. 1831 – 18315 KPC. The main question is whether it may be applied in labour law matters. In my opinion, the answer to this question should be positive. It follows from the new formula expressed in Art. 10 KPC according to which in all matters where settle-ment is possible, such settlement may be concluded before a mediator25. This is confirmed also by the lege non distinquente argument applied in relation to Art. 183 § 4 KP. It provides that mediation is conducted prior to initiation of (court) proceedings, and upon consent of the parties it may also be conducted in the course of the ongoing proceedings. Because of the fact that the above provision does not make a distinction, in material terms, as regards categories of matters or types of procedure, it seems fully reasonable to argue that it applies to all labour law matters, and according to Art. 1 KPC even to matters arising out of employ-ment relationships. An opposite interpretation would be justified only if a spe-cific provision explicitly excluded the mentioned category of matters from the mediation procedure.

In analysing the normative regulation adopted in title II, chapter 1, section 1 of the Code of Civil Procedure, it is necessary to consider the personal aspect. According to the provisions of Art. 1831 KPC, the mediation may be initiated both by the employee and the employer. There are no personal restrictions in

24 See: W. Patulski, [in:] W. Muszalski (ed.), Kodeks... [Code...], p. 1228.25 See: T.M. Romer, Ugoda w postępowaniu procesowym i pojednawczym [Settlement in litiga-

tion and in conciliation procedure], MoPr 2005, No. 11, p. 294.

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this respect unlike in Art. 242 § 2 KP under which the employer may only be a passive party.

At the material level, it should be assumed that according to Art. 1831 § 2 KPC the mediation procedure may be initiated either under an agreement to mediate (umowa o mediację)26 or under a decision of a labour court referring the parties to mediation under Art. 1838 § 1 KPC. Under Art. 183 § 2 KPC an agreement to mediate should be a separate agreement. There is no doubt that this applies also to the acts establishing an employment relationship. However, a question arises whether a mediation clause may be an integral part of a contract of employment. I share an unorthodox view according to which such clause may be included in the contract of employment provided that it meets the requirements laid down in Art. 1831 § 3 KPC, in particular it specifies the subject-matter of the mediation. At the obligations level, it should be sufficiently specific, therefore in my opinion a contractual provision according to which a subject-matter of mediation are all disputes involving claims arising out of employment relationship or even labour law disputes is not sufficient. Undoubtedly such obligations clause, despite being legal, seems contrary to the ratio legis of the mentioned provision.

It should also be noted that according to the provisions of procedural law the agreement to mediate may be concluded by conduct (per facta concludentia). This is explicitly provided for in Art. 1831 § 2 KPC in fine. It provides that the agreement may be concluded by a party’s consent to mediation where the oth-er party requests such mediation under Art. 1836 § 1 KPC. Such consent is ex-pressed by joining the procedure.

Another statutory option for initiation of the mediation procedure is a de-cision of the labour court referring the case to mediation under Art. 1838 KPC. The court may issue such decision until the end of the first hearing. Following the end of the hearing, the court may refer the parties to mediation only upon their mutual request. In the course of the proceedings the court may do that only once. A respective decision is issued in a closed meeting (Art. 1838 § 3 KPC). This might suggest that in labour law matters such decision may be taken by a court only in exceptional circumstances. In should be kept in mind that „di-rect” mediation obligations are imposed on the labour courts under Art. 10 and Art. 468 § 2 (2) KPC. In particular, the latter provision obligates a labour court, in the course of the preliminary inquiries27, to encourage the parties to reconcile and enter into settlement. Therefore, a decision under Art. 1838 § 1 KPC should

26 See: M. Pazdan, Umowa o mediację [Agreement to mediate], Prace Instytutu Prawa Własności Intelektualnej UJ 2004, No. 88, passim.

27 See: K. Kołakowski, Postępowanie wyjaśniające w sprawach pracowniczych [Preliminary in-quiries procedure in employment matters], NP 1967, No. 2, p. 211 ff.


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be issued only in exceptional circumstances. In my opinion the positions of the parties to an employment relationship should be decisive. If the parties conclude that it would be easier for them to reach a compromise in a dispute concerned before an out-of-court mediator, then the labour court should refer the case to the out-of-court mediation procedure. As regards the labour matters, such activi-ties should only be subsidiary, and should be an exception and not a rule. At the normative level, this is confirmed by Art. 1831 § 1 KPC. It is worth noting that in labour law matters also Art. 2021 KPC applies which provides that if the parties concluded an agreement to mediate, a court must refer the parties to mediation in response to a plea of the defendant raised before entering a defence on the merits.

A mediator in the labour law matters may be any natural person who has full capacity to perform acts in law and fully enjoys public rights. In terms of procedural law, the citizenship or a national status of the mediator is of no im-portance. Therefore, this function may be performed for example by diplomatic commercial attachés. However, the function of a mediator cannot be performed by a judge. This applies to all judges, both in general and in special courts. How-ever, this does not apply to retired judges (Art. 1832 § 2 KPC in fine).

The procedural act leaves it up to the parties to select the mediator. For that purpose the parties may use a list of permanent mediators appointed by social or-ganisations. There is no reason why the mediation centres referred to in Art. 1832 § 3 KPC should not be established by trade unions or employers’ organisations. In organisational terms, an optimal solution is establishment of a common centre by trade unions and employers’ organisations. Undoubtedly, this would serve pro-fessionalization and objectivization of mediation services in industrial relations.

Provisions of title II, chapter 1, section 1 of the Code of Civil Procedure do not give too many explanations concerning the role of the provider of „good (mediation) services”. It seems that a central directive in this regard is Art. 1833 KPC according to which a mediator should be impartial in the mediation. From the praxeological point of view the success depends on objective approach to the opinions expressed by the parties.

The mediation procedure prescribed by the Code of Civil Procedure may be either paid or free of charge28. In labour law matters it would be particularly in-appropriate if the employee was charged with the costs of mediation. However, such possibility is provided for, implicite, by Art. 1835 KPC in fine.

The mediation procedure is initiated upon service on the mediator of a re-quest for mediation with a proof of service of a copy of such request on the other party29. The correct request for mediation should include:

28 Art. 183 (5) KPC.29 Art. 183 (6) §1 KPC.

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– names of the parties,– clear specification of the subject-matter,– circumstances justifying the demand,– signature of a party,– annexes.

If the parties concluded an agreement to mediate, a copy of such agreement should be enclosed to the application.

According to the provisions of Art. 1836 § 2 KPC, the mediation will not be initiated despite receipt of the request if:– a permanent mediator, within one week of receipt of the request, refused to

conduct the mediation,– the parties entered into an agreement to mediate in which they indicated as

a mediator a person who is not a permanent mediator and such a person, within one week of receipt of the request, refused to conduct the mediation,

– the parties entered into an agreement to mediate without indicating a me-diator and a person who has been requested by a party to conduct the media-tion, within one week of receipt of the request, did not agree to conduct the mediation or the other party, within one week, did not agree that the person concerned be appointed a mediator,

– the parties did not enter into an agreement to mediate and the other party did not consent to the mediation.The examples listed above are clearly in compliance with the principle of vol-

untary mediation procedure. This applies not only to the parties in a dispute but also to the mediator. The only statutory restriction is a directive laid down in Art. 1832 § 4 KPC according to which a mediator may refuse to conduct media-tion only for important reasons of which he should immediately inform the par-ties and if the parties were referred to the mediation by a court – also the court should be informed. In this context it is worth emphasizing that a court refer-ring the parties to the mediation appoints a mediator. However, the parties are not bound by the choice of the court and may appoint other mediator (Art. 1839 KPC). The parties may also dismiss the mediator at any time. This applies both to the mediator appointed under the agreement and the one appointed by the court.

The flexibility of the mediation activities in resolution of disputes, also in la-bour and employment relations, is fostered by the limited formalism of the me-diation procedure. The provisions of the Code of Civil Procedure have a high level of generality and therefore they set out only a framework of the mediation procedure. Therefore, the mediator enjoys a relatively high level of discretion as regards selection of techniques to influence the parties in dispute.

A central point of mediation is a mediation meeting (posiedzenie mediacyjne). According to the provisions of Art. 18311 KPC the date and place of such meet-


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ing is specified by the mediator. In practice, hearing both parties is of key impor-tance for the efficient overcoming of differences between them.The knowledge of the circumstances of the case plays a constructive role in consensual resolu-tion of an individual labour dispute before a mediator. If the mediation was initi-ated upon a decision of a court in accordance with Art. 1838 § 1 KPC, the court may, upon mutual request of the parties, authorize the mediator to consult the files of the case (Art. 1839 KPC in fine). There are no obstacles to conducting the preliminary inquiries in the course of the mediation procedure, also the media-tion involving obligations. In practice, it may be particularly useful to prepare an expert opinion30 concerning the subject-matter of the dispute which can help es-tablish the circumstances of the case concerned. The objective and undisputed determination of factors may cause the party who is not right to enter into a set-tlement agreement or to withdraw the claims.

According to the provisions of Art. 18311 KPC the mediation meeting does not have to be scheduled if the parties agree to the mediation without holding the mediation meeting. Therefore, under the procedural provisions in force, the mediation meeting is not obligatory. In such event the mediation will take a form of indirect negotiations. In such event the role of the mediator is to make the parties to an individual labour dispute understand their mutual interests arising from the obligation bonds existing between them. In particular, the me-diator should emphasize the circumstances affecting the mutual interdepend-ency and use sound arguments to encourage the parties to enter into a settle-ment agreement.

The mediation procedure is not open. A mediator is subject to a statutory ob-ligation of secrecy in respect of all facts which became known to him during the mediation. Only the parties may relieve the mediator from that obligation (Art. 1834 § 2 KPC in fine). It should be noted that a mediator cannot witness as to the facts he came to know of in connection with conducting the mediation, unless the parties release him from the obligation of secrecy31.

The mediation procedure should be recorded in the minutes which should specify the place and date of the mediation, the personal data of the parties and the outcome of the mediation32. If the parties entered into a settlement agree-ment, it should be included in the minutes or attached to the minutes33. In my opinion, failure to include or attach the settlement to the minutes does not affect its substantive validity but can merely deprive it of certain procedural attributes.

30 The parties should specify which one of them should bear the costs of the expert opinion.31 Art. 2591 KPC.32 Art. 18312 § 1 KPC.33 Art. 18312 § 2 KPC.

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The same applies in a situation where the minutes are not signed by the media-tor or by the parties.

The key objective of each mediation procedure, also this conducted in la-bour law matters, is conclusion of a settlement agreement by the parties. Follow-ing conclusion of the settlement agreement, the mediator should immediately submit the minutes to the court. If the mediation procedure was initiated under an agreement, the minutes should be submitted to a competent court of general or exclusive jurisdiction (Art. 18313 § 1 KPC). Because of the fact that the laws do not provide for an exclusive jurisdiction of a court, it should be assumed that the mediator should submit the minutes to the labour court of general compe-tence. The provisions of Art. 464 § 1 KPC on alternative jurisdiction will not ap-ply in such case. Such interpretation is based on the argument that Art. 18313 § 1 KPC is a specific provision in relation to the above article. In a situation where the case was referred to mediation by a court, the mediator should file the min-utes with the court hearing the case. In such event the provisions of Art. 464 § 1 KPC will apply.

Under the provisions of Art. 18313 KPC it is not clear whether the case should be referred by the mediator upon request of a party or on his own motion. In my opinion, in a situation referred to in § 1 it should be assumed that this should be made on request of at least one of the parties. Such interpretation is justified by the principle of dispositiveness of the civil procedure. On the other hand, in a sit-uation referred to in § 2 of that provision, the case is referred ex officio, without request of a party. Such interpretation is supported by the argument of function-ality and the imperative nature of the provision in question.

Under Art. 18314 KPC, the court is competent to approve the settlement agreement concluded before the mediator. If the settlement agreement is enforce-able through enforcement proceedings, an enforceability clause should be at-tached to it, otherwise the court should approve the settlement agreement in a de-cision issued in closed session. As regards the regulation adopted in Art. 18314 KPC, the issue to be resolved is validity of the settlement agreement in the case where the latter has not been approved. In my opinion, in terms of substantive law, this should not render the settlement agreement ineffective in every single case. A decisive question is why the court decided not to approve the settlement. If the settlement agreement was deemed contrary to law, contrary to the rules of social coexistence or is aimed at circumventing law, then it should be considered invalid. If the decision not to approve the settlement agreement is based on the argument that the settlement is unintelligible or contains contradictions, then it is merely deprived of the status of a court settlement (Art. 18315 § 1 KPC) which affects mainly its enforceability.


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Under Art. 18314 § 3 KPC, the scope of the freedom of contract in respect of the settlement agreements concluded before a mediator, also in labour law matters, is similar with other categories of settlement agreements concluded be-tween the employee and the employer. A question arises whether a settlement agreement concluded in a labour law matter before a mediator can be approved if it violates a legitimate interest of an employee. In my opinion in such situation Art. 469 KPC should apply. This means that a labour court may refuse approval of a mediation settlement agreement if it undermines a legitimate interest of the employee. The application of the above normative directive is justified by a co-haerentia and a completudine argumentation.

In analysing the mediation procedure, it is worth raising the question of its compliance with the provisions of Art. 45 (1) and Art. 77 (2) of the Constitution of the Republic of Poland, in particular whether the mediation procedure does not violate the right to a fair trial guaranteed in these constitutional provisions. In my opinion, also in this category of matters the access to court remains open. Because of the fact that the procedure in question is voluntary, a party whose rights were violated may bring an action in court. From a constitutional point of view it is important that in the case of failure of the mediation procedure the en-titled party is free to seek legal protection before court.

§ 4. Judicial conciliation procedure

The conciliation procedure before a labour court is a legal instrument serving amicable resolution of civil disputes. Based on the overall characteristics of this procedure, I may conclude that it is aimed at conclusion of a settlement agree-ment between the parties. This is implied by Art. 184 KPC. From a functional point of view the conciliation procedure34 is a preliminary procedure since the mediation activities are conducted by the court when the civil procedure is not yet pending. According to a widespread opinion, court proceedings are initiat-ed when a legal action is brought before a court. Only such legal action initiates the activities aimed at resolution of a dispute and delivery of a judgment. In this context it seems reasonable to argue that initiation of a court conciliation pro-cedure halts, at least temporarily, the initiation of the civil trial. Therefore, it is completely autonomous35.

34 See: J. Turek, Cywilne postępowanie pojednawcze [Civil conciliation procedure], Palestra 2004, No. 1–2, p. 58 ff.

35 A similar view was presented by the Supreme Court in a reasoning to a resolution of 18.6.1985, III CZP 28/85 (OSNCP 1986, No. 4, item 48, p. 17).

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I should start my deliberations with the material aspect of admissibility of judicial conciliation procedure in individual labour disputes. According to the provisions of Art. 184 KPC, civil matters, if their nature allows that, may be regu-lated in a judicial settlement agreement concluded before an action is brought36. Therefore, it is necessary to consider whether there are any material restrictions on conducting the conciliation procedure in labour law matters. It seems that the only restriction is the right to judicial recourse in a strict sense. If a party does not have a right to judicial recourse to resolve a civil dispute, then automatically no judicial conciliation procedure can be opened and conducted in this matter. In this context it is obvious that in the categories of disputes listed in Art. 262 KP such procedure is inadmissible. If it is established that because of the nature of the case a conciliation hearing is not admissible, the labour court, in a closed session, will dismiss the request for the conciliation procedure.

As regards the restrictions on the initiation of conciliation procedure, worth noting is an opinion of the Polish Supreme Court37 according to which a matter already judged (res iudicata) precludes not only bringing repeated action between the same parties regarding the same claim but it also precludes opening judicial conciliation procedure in this regard. The labour court should not hear for the second time the case which has already been validly resolved since this would be in violation of the ne bis in idem principle. Such retrial of the case serves no pur-pose since the case became indisputable as a result of its resolution by a judgment. In my opinion, the above standpoint of the Supreme Court should be supported also in terms of procedural economy. There is no point in opening the procedure in a situation where it is clear in advance that it cannot lead to conclusion of a set-tlement. On the other hand, the judicial conciliation procedure cannot be exclud-ed38 in matters concerning arrangement of the awarded amount to be paid in in-stalments or postponement of the date of performance ordered in the judgment.

I should now discuss the personal aspect of admissibility of the judicial conciliation procedure in labour law matters. This issue raises certain doubts. In particular this refers to initiation of the procedure upon employee’s request. The doubts arose because the legislation in force provides for other procedures in which a matter may be resolved amicably between the employee and the employ-ing entity. In particular, I am thinking here of out-of-court conciliation procedure conducted by the conciliation commissions, as well as the preliminary inquiries

36 See: T. Wojciechowski, Kontrola ugody sądowej [Control of court settlement], KPP 2001, No. 3, p. 639 ff.

37 See a ruling of the Supreme Court of 30.8.1966, I PR 485/66, OSPiKA 1967, No. 9, item 224, p. 425–426.

38 E. Wengerek, Przegląd orzecznictwa Sądu Najwyższego z zakresu postępowania cywilnego za rok 1967 [Case-law of the Supreme Court in civil matters for the year 1967], NP 1968, No. 4, p. 629.


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conducted in the labour courts after the action has been brought by an employee. In my opinion the existence under the legislation currently in force of the two of the mentioned alternative mechanisms does not exclude the possibility of initia-tion of court conciliation procedure39 by an employee. An employee is entitled to undertake such actions under Art. 184 KPC. The said provision does not provide for any, even indirect, restrictions in this regard. In the light of a directive adopt-ed in that provision it seems certain that any person, both legal and natural, who has a capacity to be a party to legal proceedings, may initiate the proceedings by filing a request40 with a court to set a conciliation hearing (zawezwanie do próby ugodowej) in a labour law matter.

It should be stressed that in practice the judicial conciliation procedure may be particularly useful in matters in which an employee is the obligated party. It should be borne in mind that if an employer wishes to resolve amicably a dis-pute with his employee, without bringing an action, he has no possibility to submit his demands to the internal legal protection body that is a conciliation commission. According to the provisions of the Labour Code, the out-of-court conciliation procedure may be initiated exclusively upon request of an employee. In such dispute no settlement can be reached also in the course of the preliminary inquiries since under Art. 4777 KPC such inquiries are not undertaken in matters in which an employee is a defendant.

The provisions of Art. 184 – 186 KPC are another instrument allowing practi-cal implementation of the principle of irenic resolution of individual labour dis-putes expressed in Art. 243 KP. In my opinion the said provisions seem useful, in particular in the event of amicable resolution of minor matters arising in respect of financial liability of employees. In practice, it applies mainly to matters relat-ing to cash shortage or other compensation matters.

The court conciliation procedure, just like the out-of-court conciliation pro-cedure, is optional. Participation in that procedure by an entity invited to con-ciliation is voluntary in the sense that the latter does not have to participate if it does not wish to enter into a settlement. Evasion of settlement will have no direct negative consequences for such entity at the procedural level. The Code of Civil Procedure does not provide for any coercive measures to be used by the court to enforce appearance of the parties at the conciliation hearing. However, in some situations, an entity who neglected the summons to a conciliation hearing may bear financial consequences of such behaviour. According to Art. 186 § 2 KPC, if an opposite party does not appear at the meeting without excuse, then the court,

39 An opposite opinion was presented by W. Tomyn, Postępowanie… [Procedure…], p. 13.40 Of course, the conciliation procedure cannot be instituted by the court on its own motion

(ex officio).

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upon demand of the calling party who then brought an action in the case con-cerned, will allow the costs resulting from the conciliation hearing in a ruling ending the proceedings. This provision has a practical meaning in labour law matters only where an employee losing the case is charged with41 expenses con-nected with activities of the court undertaken in the course of the proceedings and earlier in such case the employer filed a request for a conciliation hearing which has not been conducted through the fault of the employee.

An issue to be discussed in relation to the request for a conciliation hearing are legal consequences of such request. The starting point for further delibera-tions will be an observation that the consequences of such request may be either substantive or procedural. The main procedural consequence of the request for a conciliation hearing is initiation of the conciliation procedure. As a result of such request a labour court will undertake irenic activities. However, previously the president of the court must decide whether the conciliation procedure is ad-missible at all. To this end, he should verify the formal conditions of the request and check whether the conditions were met necessary for the commencement of the judicial conciliation procedure.

It should be stressed that the request for a judicial conciliation procedure does not produce the same consequences as the statement of claim in terms of juris-diction of a court. Article 15 § 1 KPC does not apply. It will apply only after the action has been brought before a court.

Now I should discuss the substantive consequences of the request for concili-ation. First, it results in: – interruption of the limitation periods42, second – in-terruption of the periods prescribed in Art. 264 KP. Interruption of the limitation period means that the entire period, from the start of the limitation period until its interruption is not included in the period of limitation. According to the pro-visions of Art. 295 § 1 (1) KP the limitation period is interrupted by any activ-ity undertaken before a competent authority appointed for resolution of disputes arising out of employment relationship or for enforcement of claims, undertaken directly to pursue, establish, satisfy or secure a claim. In the context of this pro-vision it should be considered whether a request for conciliation before a labour court can be considered the activity „undertaken directly to pursue claims” in labour law matters. I think that such motion can be classified into this group of activities since its objective, namely pursuance of a claim, may be achieved not only by obtainment of a court ruling deciding on the disputable relationship but

41 See Art. 463 § 1 and 2 KPC.42 See: F. Małysz, Przedawnienie roszczeń ze stosunku pracy. Cz. I i II [Limitation of claims aris-

ing out of employment relationship. Part I and II], PP 2001, No. 3, p. 14 ff., and No. 4, p. 7 f.; A. Kosut, [in:] K.W. Baran (ed.), Kodeks pracy. Komentarz [Labour Code. Commentary], Warsaw 2012, p. 1389.


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also by conclusion of a court settlement43. In my opinion, the request for a court conciliation procedure is aimed – just like a statement of claim – at satisfaction of the pursued claim. Such opinion is also supported by the fact that44 if such re-quest is considered an act interrupting the limitation period, the legal situation of the obligor cannot be adversely affected.

It should be noted that the period of limitation is interrupted only within the limits of the claim specified in the request45. In the court practice, usually there will be no difficulties to prove the scope of interruption of the limitation period resulting from such request and this is because of the obligation imposed on the applicant under Art. 185 § 1 KPC to specify the scope of demands in the matter which is to be subject to the proceedings. If the request does not meet the statu-tory requirements, it will not result in interruption of the period of limitation. Therefore, the request which fails to identify the parties or to specify the claim pursued does not result in interruption of the limitation period. In this context I support the view presented by the Supreme Court in the judgment of 19.3.201246, according to which a request for a conciliation hearing (zawezwanie do próby ugodowej) under Art. 185 (1) KPC interrupts the limitation period in relation to debt claims specified in such request, both as regards the subject-matter and the amount of the claim.

The second important consequence of the request for a conciliation hearing, at the substantive level, is suspension of the deadlines for pursuance by an em-ployee of claims arising from termination, expiration or non-entry into an em-ployment relationship (Art. 264 KP)47. In the context of Art. 184 KPC it cannot be accepted that the deadlines set out in Art. 264 KPC run in a situation when there are proceedings pending before court, aimed at amicable resolution of a dis-pute. A different interpretation would often grossly harm the employee willing to resolve the case amicably. It should be emphasized that the judicial concilia-tion procedure, unlike the out-of-court conciliation procedure, is not restricted by any deadline, therefore until the end of such procedure the time-limits speci-fied in Art. 264 KP will not run.

43 See a ruling of the Supreme Court of 3.6.1964, II CR 675/63, OSNCP 1965, No. 2, item 34, p. 53.

44 M. Jędrzejewska, Możliwość przerwania biegu przedawnienia przez czynności poprzedzające wniesienie pozwu oraz w drodze przypozwania [Interruption of a period of limitation by actions preced-ing filing a statement of claim and by a third party notice], PUG 1966, No. 3, p. 87.

45 See a judgment of the Court of Appeal in Lublin of 15.2.1996, III APr 1/96, OSA 1998, No. 1, item 1.

46 II PK 175, MoPr 2013, No. 1, p. 34.47 See: A.M. Świątkowski, Komentarz… [Commentary…], p. 500 ff.

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The labour court acting as a mediator in the conciliation procedure should work actively to achieve reconciliation between the parties48. In this respect, practically important is the question whether evidence can be taken in the course of such proceedings. In my opinion, in the judicial conciliation procedure all provisions governing evidence should be applied as regulated by the provisions of title 6, section 3, chapter 2 of the Code of Civil Procedure49. This is based on a directive expressed in Art. 13 § 2 KPC according to which the provisions gov-erning litigation should apply to other procedures regulated in the Code, unless specific laws provide otherwise. Because of the fact that Art. 184 – 186 KPC do not provide for any „special provisions” with regard to the evidentiary procedure, in my opinion there is no doubt that the general rules should apply. A complete-ly different matter is that conducting an exhaustive evidentiary procedure in the course of the mediation procedure is usually pointless. An in-depth examina-tion of facts of the case is justified only in the fact-finding proceedings. During the mediation procedure the labour court should only take the evidence which may directly contribute to conclusion of a pre-trial settlement agreement (ugoda przedprocesowa) between the parties. It seems that also in this procedure a direc-tive worded by the Supreme Court in its judgment50 of 6.7.1999, , should apply. The Court held that a settlement ending a dispute does not have to be preceded by evidentiary procedure.

According to the provisions of Art. 185 § 3 KPC there should be minutes tak-en of the conciliation hearing. If a settlement agreement was concluded, its con-tents should be entered in the minutes and signed by the parties to an employ-ment relationship. This is a continuance of a standpoint adopted already in the case-law of the Supreme Court during the interwar period51, according to which a court settlement agreement is formally concluded only upon signature of min-utes of the settlement by a judge and a recording clerk. A similar mechanism ap-plies also in fact-finding proceedings (Art. 158 § 1 (3) and § 2 of that provision). This way the court implicitly approves the provisions of the settlement agreement concluded between the parties. If the settlement agreement violates the scope

48 See: T. Wojciechowski, Charakter… [A nature...], p. 36 ff.49 In the conciliation procedure in labour law matters the provisions of Art. 473 KPC should

apply in relation to evidence.50 I PKN 200/99, OSNAPiUS 2000, No. 19, item 721.51 A similar view was presented by the Supreme Court in a ruling No. C II 150/35 published

in a collection J.J. Litauer, W. Święcicki (eds), Kodeks postępowania cywilnego. Tekst kodeksu i postępowania cywilnego z orzecznictwem Sądu Najwyższego oraz przepisy uzupełniające i związkowe [The Code of Civil Procedure. A text of the Code, including supplementary provisions and trade union laws], vol. I, Poznań 1947, p. 128.


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of the freedom of contract, the court issues a decision declaring such settlement agreement unacceptable. A party may file a complaint against such decision52.

If, however, the parties did not reach an agreement in the case concerned or one of the parties failed to appear before court without excuse, it should be re-corded in the minutes that the settlement has not been reached. In such case the entry in the minutes and the order of the presiding judge closing the hearing are the last stage of the judicial conciliation procedure.

To sum up, the judicial conciliation procedure is a legal instrument aimed at amicable resolution of civil matters, also labour law matters, before an action is brought before a court. Therefore, it cannot be considered a fragment of the fact-finding proceedings since it is carried out outside the court proceedings. Any in-fringements in the course of such proceedings cannot be the basis for an appeal.

52 See a resolution of the Supreme Court (SN) of 18.6.1985, III CZP 28/85, OSNCP 1986, No. 4, item 48 with a commentary of J. Mokry, OSPiKA 1988, No. 6, item 136. See also: B. Bladowski, Szc-zególne wypadki dopuszczalności zażalenia w postępowaniu cywilnym [Right to file a complaint in civil proceedings – specific cases], Palestra 1991, No. 3–4, p. 28 ff.

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Chapter 6. Settlement agreements in individual labour disputes

K.W. Baran

§ 1. Classification of settlement agreements in individual labour disputes

The legislation in force and in particular the Labour Code and the Code of Civil Procedure provide for a possibility that a settlement agreement may be en-tered into between the parties to an individual labour dispute. This may happen at different stages of the dispute, hence before various legal protection bodies. Therefore, a settlement agreement produces legal consequences depending on when and before which body it was concluded. For the sake of clarity of further deliberations, it is necessary to describe the types of settlement agreements in in-dividual labour disputes.

According to a prevailing view, settlement agreements in individual employ-ment matters can be divided into court (judicial) and out-of-court (extrajudicial) settlement agreements1. In my opinion, in the context of the laws currently in force, this division needs to be clarified. As regards the proposed classification

1 This division was taken from civil law scholars. See for example: H. Trammer, Ugoda wedle prz-episów kodeksu postępowania cywilnego [Settlement agreement according to the provisions of the Code of Civil Procedure], Cracow 1933, p. 3–5; Z. Masłowski, Uznanie, ugoda, zwolnienie z długu, poręczenie [Admission, settlement agreement, release from debt, guarantee], Katowice 1965, p. 40; J. Lapierre, Ugoda sądowa w polskim procesie cywilnym [Court settlement in the Polish civil procedure], Warsaw 1968, p. 59–61; idem, Ugoda sądowa w polskim procesie cywilnym [Court settlement in the Polish civil procedure], PS 1996, No. 2, p. 13 ff.; L. Ostrowski, Ugoda sądowa [Court settlement], NP 1972, No. 7–8, p. 1122. See also: A. Kaściński, Niektóre problemy polubownego załatwiania indywidualnych sporów pracy przed komisjami rozjemczymi i komisjami odwoławczymi do spraw pracy [Some is-sues regarding amicable resolution of individual labour disputes before conciliation commissions and appeal commissions for labour matters], Studia Prawnicze 1981, No. 4, p. 131–133; B. Wagner, Zakres swobody umów w pracowniczym stosunku pracy [Scope of the freedom of contract in an employment relationship], Cracow 1986, p. 157; T. Zieliński, Prawo pracy… [Labour law…], p. 170, footnote 31.

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of settlement agreements concluded between employees and employers in in-dividual labour disputes, my point of reference 2 were two classification criteria (principium divisionis): a personal criterion, which refers to a body before which the settlement agreement was entered into and a temporal criterion, which re-fers to a stage (phase) of the procedure at which the settlement agreement was concluded.

As regards the settlement agreements concluded before a labour court, fur-ther called court settlements, I propose to make a distinction between pre-trial and mid-trial settlement agreements3. A settlement agreement may be classified into one of the mentioned groups depending on whether it was entered into dur-ing the ongoing court proceedings (mid-trial settlement agreement) (ugoda pro-cesowa) or before commencement of the court proceedings, in the conciliation procedure4 (pre-trial settlement agreement) (ugoda przedprocesowa). There is a significant difference between those two types of settlement agreements, name-ly5 a pre-trial settlement agreement, unlike the mid-trial settlement agreement, does not result in discontinuance of court proceedings.

On the other hand, as regards the out-of-court settlements, I include in this category the settlement agreements concluded before workplace conciliation commissions (Art. 251 § 1 KP). I will further call them conciliation settlement agreements. This group includes also settlement agreements concluded before an arbitration court; they will further be called arbitration settlement agreements (Art. 1196 § 1 KPC). To clarify the adopted classification, it must be empha-sized that arbitration courts (sądy polubowne) do not enjoy the status of consti-tutional judicial authorities since, despite their name, they are out-of-court me-diation and arbitration entities. The out-of-court settlement agreements include also agreements concluded before a mediator, further called the mediation set-tlement agreements (Art. 18312 § 2, 18313 § 1, 18314 § 1, 18315 § 1 KPC). De lege lata, undoubtedly a mediator is an out-of-court body. The formula adopted in this study applies also to settlement agreements in which a labour court referred a case to mediation under Art. 1838 KPC.

2 A. Kaściński, Niektóre… [Some...], p. 131–133; B. Wagner, Zakres… [Scope...], p. 157; F. Małysz, Ugodowe naprawienie szkody wyrządzonej przez pracownika [Conciliatory compensation for damage caused by an employee], PiZS 1996, No. 8–9, p. 39 ff.

3 Similar view: J. Lapierre, Ugoda… [Court settlement...], p. 15 and S. Dalka, Sądowe postępowanie cywilne. Założenia i proces cywilny [Court civil procedure. Assumptions and the civil trial], Gdańsk 1984, p. 275–276.

4 See: L. Siciński, Postępowanie pojednawcze i wyjaśniające w nowym kodeksie postępowania cywilnego [Conciliation and preliminary inquiries in the new Code of Civil Procedure], Palestra 1967, No. 1, p. 81–82.

5 J. Lapierre, Ugoda… [Court settlement...], p. 15.

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Apart from the settlement agreements mentioned above, I include in the cat-egory of extrajudicial settlement agreements also those which are entered into between an employee and an employer with no participation of a third party but during the court or out-of-court proceedings. Moreover, in the practice of labour relations there are settlement agreements concluded in individual labour disputes in which no request to commence proceedings before legal protection bodies is made. These are concluded in accordance with the freedom of contract principle and may be called out-of-court settlement agreements in a strict sense.

§ 2. Legal nature and consequences of settlement agreements in individual labour disputes

Following the presentation of the types of settlement agreements which may be concluded between an employee and an employer, what needs clarification is the concept of „settlement agreement” itself. In the common language a settle-ment agreement means an „agreement ending a dispute, reached as a result of mutual or unilateral concessions”6. In the organisation and management sciences conclusion of such agreement between the parties involved in a dispute is called a positive cooperation. Generally speaking, it means cooperation between the parties involved in a dispute, based on the consistency of general objectives. It is undisputed that the cooperation processes are a condition sine qua non for the existence of elements (entities) creating the social reality. One of the manifesta-tions of this process in the workplace is a situation where an employee and an employing entity enter into a settlement agreement in which they make mutual concessions for the avoidance or for resolution of a dispute.

As regards settlement agreements which may be concluded in individual la-bour disputes, I would like to start with specification of a legal nature of mid-trial settlement agreements (ugody procesowe) concluded before labour courts. This will allow for better and more complete understanding of the legal nature of other types of settlement agreements.

A starting point for further deliberations concerning a mid-trial settlement agreement will be an argument that it is an agreement between the parties which includes two factors: substantive and procedural. This is broadly accepted among legal scholars. Certain controversies arise when attempts are made to establish a mutual relation between these two factors. There are two main groups of opin-

6 Such definition of the settlement agreement was presented in M. Szymczak (ed.), Słownik języka polskiego [Polish Dictionary], vol. 3, Warsaw 1985, p. 585.


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ions. According to the first one7, a settlement agreement referred to in the Code is a substantive agreement which, however, does not always correspond with the concept of a settlement agreement laid down in Art. 917 of the Civil Code (KC). The supporters of this view believe that mutual concessions of the parties which are an inherent characteristic of a substantive settlement agreement (Art. 917 KC) are not a conditio sine qua non for a mid-trial settlement agreement. On the other hand8, supporters of the second view believe that a mid-trial settlement agreement should „meet not only the requirements set out in the procedural laws but also the requirements arising from civil law, in particular the provisions of Art. 917 KC. A particularly convincing argument is that the procedural laws gov-ern only a form in which a settlement agreement should be concluded, the pow-ers of the court regarding control of the settlement agreement and the effects of such settlement agreement on the pending proceedings. But procedural laws do not specify the substantive content of the settlement agreement9. The latter is governed only by substantive laws, in particular Art. 917 KC.

In the labour law jurisprudence certain doubts arise as regards the substantive aspects of a mid-trial settlement agreement. Generally speaking, the question is whether an agreement between the employee and the employer in the substan-tive sphere of a mid-trial settlement is a settlement agreement within the mean-ing of Art. 917 KC. In other words, whether Art. 917 of the Civil Code may be applied in the Polish labour law. It is worth noting that the situation is similar for all other types of settlement agreements discussed in this book since they all produce legal effects under substantive law10. Therefore, a comprehensive over-view is necessary.

However, before I discuss the applicability of Art. 917 KC in the labour law, I should first describe, at least in general terms, the concept of civil-law settle-ment agreement. According to a prevailing view11, it is an agreement between the parties which belongs in a group of declaratory agreements which are aimed at

7 See for example: R. Longchamps de Berier, Zobowiązania [Obligations], Poznań 1948, p. 625; F. Zoll, Zobowiązania w zarysie [Obligations – an outline], Warsaw 1948, p. 88; R. Czarnecki, Ugoda [Settlement agreement], NP 1967, No. 10, p. 1290; M. Piekarski, Czynności materialnoprawne a czynności procesowe w sprawach cywilnych (Wybrane zagadnienia) [Substantive actions and pro-cedural actions in civil matters (Selected issues)], Studia Prawnicze 1973, No. 37, p. 131–132.

8 See in particular: J. Lapierre, Ugoda… [Court settlement...], p. 59–60; T. Wojciechowski, Charakter prawny ugody sądowej [Legal nature of court settlement], PS 2001, No. 6, p. 36 ff.

9 J. Lapierre, Ugoda… [Court settlement...], p. 60.10 See: B. Wagner, Zakres… [Scope...], p. 158.11 See: Z. Radwański, [in:] S. Grzybowski (ed.), System prawa cywilnego. Prawo zobowiązań część

szczegółowa [A system of civil law. The law of obligations – the specific provisions],Wrocław 1976, p. 1072; J. Turek, Ugoda w procesie cywilnym [Settlement agreement in a civil trial], MoP 2005, No. 21, p. 35 ff.

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transformation of uncertain or disputable legal relationship into certain or un-disputed legal relationship12. According to the provisions of Art. 917 KC, under a settlement agreement the parties make mutual concessions regarding the ex-isting legal relationship in order to remove uncertainty as to the claims arising from such relationship or resolve a dispute already existing or which might arise. The above regulation was, only with minor editorial changes, transposed into the Civil Code from Art. 621 of the Code of Obligations in force until 31.12.196413. With this, an indirect reference was made to a construct which was known al-ready in the Roman law and was called transactio14. Under such agreement, which in the Justinian law was included among the so-called contractus reales in-nominati, one of the parties was waiving its right in exchange for waiver of rights by the other contractual party15. With this, the parties removed, as in the case of a settlement agreement, the consequences of uncertain legal relationship, by making mutual concessions. It seems that the mutual concessions are character-istic of a settlement agreement within the meaning of Art. 917 KC. The mutual-ity of concessions means their reciprocity and subjective equivalence16. For that reason, a settlement agreement can be treated as a mutual agreement17, even if, on the basis of an objective assessment, the concessions made by one of the par-ties are not equivalent to the concessions of the other party. A decisive factor is only opinions of the parties of themselves. According to the Supreme Court18 the concept of mutual concessions has a relatively broad scope. According to an opinion presented by the Supreme Court, such mutual concessions may consist not only in reduction of substantive claims but also in a waiver by a party of its procedural rights. In the latter case it means giving up a ruling having the force of res iudicata. Under a court judgment, as a legal instrument having the force of res iudicata, the rights declared in it have stronger legal basis and therefore are more difficult to refute than the rights declared under a court settlement19 which

12 M. Sośniak, Podstawy prawa cywilnego i rodzinnego [The foundations of civil and family law], vol. 3, Katowice 1980, p. 241 pointed out that a purpose of the settlement agreement is primarily to facilitate fulfilment of an obligation.

13 Dz.U. 1933, No. 82, item 598 as amended.14 See: W. Włodkiewicz, [in:] W. Włodkiewicz (ed.), Prawo rzymskie. Słownik encyklopedyczny

[Roman law. Encyclopaedia dictionary], Warsaw 1986, p. 150.15 See: W. Osuchowski, [in:] W. Litewski, J. Sondel (eds.), Rzymskie prawo prywatne. Zarys

wykładu [Roman private law – an outline], Warsaw 1986, p. 150.16 As regards the code of obligations previously in force, see also: J. Basseches, J. Korkis, Kodeks

zobowiązań [The Code of Obligations], Lviv 1938, p. 681.17 W. Czachórski, Zobowiązania. Zarys wykładu [Obligations – an outline], Warsaw 1986, p. 454.

See also: Z. Masłowski, Uznanie… [Admission…], p. 35–36.18 See a judgment of 2.12.2011, III PK 28/11, Legils, argument 1.19 It seems to apply mutatis mutandi also to out-of-court settlement agreements concluded in

individual labour disputes.


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does not have the force of res iudicata and is much easier to abolish20. Having the right, even a similar one, but based on a stronger legal title, is a tangible benefit to a party. By entering into a court or out-of-court settlement agreement, a party waives such benefit.

It must be stressed that the mutual concessions made by the parties in the settlement agreement do not have to be objectively equivalent. The subjective equivalence is sufficient for such agreement to be effective. A decisive factor is the views of the parties themselves. This should be a point of reference in the assess-ment by a legal protection body of compliance of the settlement agreement with a legitimate interest. It is worth noting that the objective limits of the concessions for the particular types of settlements are set out by law (the Labour Code (KP) or the Code of Civil Procedure (KPC)).

As regards the mutual concessions under substantive law, these may consist in reduction of rights21 of a party, or recognition by a party of increased rights of the other party22. It is useful to indicate specifically the practical importance of such mutual concessions (referred to in Art. 917 KC) included in the settlement agree-ments concluded in individual labour matters. They can take various forms. Very often a settlement agreement is concluded if an employee waives his inflated de-mands. This is usually the case with disputes relating to wages. This holds true in a situation where an employee received a cash benefit from the employer (e.g. re-muneration) which is lower than this originally demanded by the employee, and this is because a legal protection body established that the claim raised was justi-fied only in part. Another category of settlement agreements which provide for mutual concessions in a narrow sense are the agreements under which an employ-ee waives his original claim in return for another benefit. This is the case where the provisions of labour law provide for alternative rights of an employee. One of the examples may be a settlement agreement under which an employee will receive compensation23 instead of the originally demanded reinstatement.

Somewhat different are the concessions in which the claims originally pursued by an employee are modified in the settlement agreement under the factual cir-cumstances occurring in the case concerned. This may be the case where an em-ployee to whom an employer gave a notice of termination of a contract of employ-

20 In this context, I support a standpoint presented by B. Wagner (Zakres… [Scope…], p. 159), according to which „there is no reason why property rights should be ranked higher than personal rights (mental peace) as would be the case with a narrow understanding of concessions, restricted to claims under substantive law”.

21 This applies also to future rights. See a judgment of the Supreme Court of 16.10.2009, I PK 89/09, Legalis, argument 3.

22 See a judgment of the Supreme Court of 12.5.2004, I PK 603/03, OSNP 2005, No. 3, item 34.23 See a decision of the Supreme Court of 6.5.1999, I PKN 183/99, OSNAPiUS 2000, No. 13,

item 515.

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ment under Art. 45 KP and who demanded reinstatement, was reinstated under the settlement agreement, however, to a different position or under different terms and conditions (e.g. relating to wage). Similar concessions occur where an em-ployer withdrew in a settlement agreement a notice to amend wage conditions (wypowiedzenie warunków płacy) in return for which the employee undertook to perform the activities which prior to the notice did not fall within the scope of his responsibilities. I include in the same category of successions a situation where an employee who initially demanded that the notice of termination of a contract of employment be rendered ineffective further waives such demand and agrees in a settlement agreement to conclude with his employer a contract for a fixed term.

A separate category of mutual concessions which are often included in the settlement agreements is a situation where an employee and an employer, un-der a mutual declaration of will, change retroactively the mode of termination of a contract of employment. Usually this regards cases where the employer has unilaterally terminated the employment relationship under Art. 52 KP or con-sidered the contract of employment expired. However, in practice, most fre-quent are the already mentioned procedural concessions (concessions in a large sense). This holds true in a situation where a party whose claims were satisfied in full under a settlement agreement decides not to pursue the same claims be-fore court and therefore obtains a legal title weaker than a final judgment of the labour court.

In practice, the mid-trial settlement agreements include a clause that a „set-tlement agreement satisfies claims of the plaintiff pursued in the proceedings”. De lege lata such clause is acceptable. However, certain doubts arise in relation to such expressions as: „the plaintiff waives any and all claims arising out of em-ployment with the defendant”, „the plaintiff undertakes not to raise in the future any claims against the defendant in respect of the contract of employment” or „the plaintiff undertakes not to raise any financial claims against the defendant”. In my opinion such clauses included in the settlement agreements concluded in individual labour disputes are invalid since an employee generally cannot waive his rights granted under mandatory laws. An example illustrating such situation is Art. 84 KP24.

Following the analysis, in terms of substantive law, of settlement agreements concluded between employees and employers, worth noting are also their pro-cedural consequences. Unlike the substantive aspects of the problem where all types of settlement agreements produce similar legal consequences, this is not the case with the procedural sphere. There exist significant differences between

24 See: B. Wagner, [in:] T. Zieliński (ed.), Kodeks pracy. Komentarz [Labour Code. Commentary], Warsaw 2000, p. 462–464.


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particular types of settlement agreements. They result from different procedural situations in which a settlement agreement is concluded. I am thinking here in particular of a phase of a dispute involving claims arising out of employment re-lationship at which a specific settlement agreement is concluded. Undoubtedly, in the procedural sphere, the consequences of a conciliation settlement or arbi-tration settlement will be different from the consequences of mid-trial or pre-tri-al settlement. Identification of the differences in this regard is another problem which needs to be discussed.

First, I should focus on „direct” consequences25 of entry into a mid-trial agreement on the course of the trial. It seems that a central point is a question whether a conclusion of a mid-trial settlement agreement ends the trial or the trial is ended by a (labour) court by issuing a decision on discontinuance of the proceedings. This has not been explicitly regulated in law and therefore it raises certain doubts. Article 355 § 1 KPC only provides that a court shall issue a deci-sion on discontinuance of the proceedings if a plaintiff effectively withdrew the statement of claim or if issuance of a judgment has become, for other reasons, unnecessary or inadmissible.

Therefore a question arises whether in the context of Art. 355 § 1 KPC con-clusion by the parties of a mid-trial settlement agreement renders unnecessary the issuance by a labour court of a judgment in a labour law matter. In my opin-ion, the answer to such question should be positive. As I have already mentioned, a mid-trial settlement agreement is not only an agreement under substantive law but also a procedural act of the parties. It seems certain that the parties conclude it not only to end a dispute which arose between them but also to end the ongoing court proceedings. In each mid-trial settlement agreement, apart from the decla-rations of will of the parties made to produce effects under substantive law, there are declarations, either express or implied, made to produce a procedural effect that is discontinuance of the proceedings26. By entering into a mid-trial agree-ment a plaintiff withdraws a demand27 for legal protection and a defendant gives consent – often per facta concludentia – for discontinuance of the proceedings.

25 See: W. Siedlecki, Z problematyki ugody sądowej [Court settlement], [in:] J. Serda, J. Szwaja (eds), Prace z zakresu prawa cywilnego i własności intelektualnej [Studies on civil law and intellectual property], Warsaw 1985, p. 149.

26 J. Lapierre, Ugoda… [Court settlement...], p. 98 and 111. See also: W. Broniewicz, Umorzenie postępowania w procesie cywilnym [Discontinuance of civil proceedings], [in:] W. Berutowicz et al., Księga Pamiątkowa ku czci Kamila Stefki [Memorial book dedicated to Kamil Stefko], Warsaw–Wrocław 1967, p. 44.

27 In the context of the provisions of the Code of Civil Procedure in force, it seems unnecessary to include in the court settlement a clause on withdrawal of a statement of claim. See: E. Wengerek, W sprawie wykonalności ugody sądowej [Enforceability of a court settlement], Biuletyn Ministerstwa Sprawiedliwości 1962, No. 7–8, p. 38.

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By doing this28 the parties withdraw the case from the labour court and there-fore the court proceedings become devoid of purpose and issuance of a judgment becomes unnecessary. A consequence of that is – under Art. 355 § 1 KPC – a re-quirement to discontinue the proceedings29. According to the principle laid down in Art. 354 KPC, civil procedure ends with issuance of a ruling. A procedural act of the parties cannot cause such effect. In this normative context it seems fully reasonable to assert that the labour court is obliged to issue a decision on discon-tinuance of the proceedings.

Another consequence of conclusion of a mid-trial settlement30 and issuance on that basis of a decision on discontinuance of the proceedings is a decision on the costs of the proceedings. In employment matters a general rule laid down in Art. 104 KPC applies. According to this provision costs of the proceedings can-cel each other out, unless the parties agreed otherwise. This regulation is an ex-ception to the general provisions governing the costs of the procedure since it leaves it to the parties to the proceedings to decide on the costs of the procedure (thus expenses) and only in the absence of such decision the court should de-cide on cancellation of the costs. Article 104 KPC correlates with the provisions of Art. 117 of the Act of 28.7.2005 on court fees in civil matters (ustawa o kosz-tach sądowych w sprawach cywilnych)31. It provides that the parties may specify in the court settlement which one of them and in what part should bear the un-paid court fees. Unless a settlement agreement provides otherwise, in a case end-ed with a settlement agreement the costs specified in Art. 113 (2)–(5) of the said act should be borne by both parties in equal parts.

Different and thus producing different consequences is a pre-trial settlement agreement concluded in the conciliation procedure conducted by labour courts under Art. 184 – 186 KPC. In my opinion it produces certain consequences in particular under substantive law. In the procedural sphere, the main consequence is ending a conciliation procedure. Unlike in the trial, in such case the Code of Civil Procedure does not require issuance of any ruling by the court. If a settle-ment agreement is concluded, the court will make a respective note in the min-utes and the presiding judge will close the court session. Therefore, a pre-trial settlement agreement is deprived of an important effect of a mid-trial settlement agreement which is discontinuance of court proceedings32.

28 In a non-published decision of 28.1.2005, II CK 341/04, the Polish Supreme Court rightly held that a declaration of will of a third party is not a basis for discontinuance of proceedings.

29 See: T. Wojciechowski, Charakter prawny… [Legal nature...], p. 36 ff.30 See a judgment of the Supreme Court of 1.7.1998, I PKN 155/98, OSNAPiUS 1999, No. 14,

item 463.31 Journal of Laws [Dz.U.] 2010, No. 90, item 594.32 L. Siciński, Postępowanie pojednawcze... [Conciliation procedure...], p. 81–82.


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The above findings allow concluding that it is not a labour court but the par-ties to the dispute to decide on termination of the conciliation procedure, there-fore it may be assumed that conclusion of a pre-trial settlement agreement is a procedural act ending the judicial conciliation procedure. An order of a presid-ing judge on the closure of the conciliation hearing is merely a confirmation of that fact. A similar situation occurs in the conciliation procedure conducted by the conciliation commissions. If the parties conclude a conciliation settlement, the procedure will end with no need for issuance by the commission of a special ruling on its discontinuance. This is because such ruling is not provided for by the laws governing the course of the conciliation procedure. However, in practice cases occur where conciliation commissions issue „decisions on discontinuance of the procedure”. In terms of the laws in force such actions are unnecessary and essentially contrary to the principle of limited formalism.

The situation seems more complex in the case of mediation settlements. If the out-of-court mediation procedure ends with a settlement agreement, the media-tor must – under Art. 18313 KPC immediately submit the minutes including the text of the settlement agreement to the court which would be competent to hear the case concerned, and if the procedure is conducted in accordance with a pro-cedure laid down in Art. 1838 KPC – to the court hearing the case concerned. Upon request of a party, the labour court should immediately conduct the pro-cedure concerning approval of the settlement33. If it is enforceable through en-forcement procedure, the court should approve it by attaching an enforceability clause to it34. Otherwise the settlement agreement should be approved in a deci-sion issued at a closed meeting.

In procedural terms, a consequence of conclusion of a settlement agreement before an arbitration court in a labour law matter is a decision on discontinuance of the procedure35. This is expressly provided for by Art. 1196 § 1 KPC. It should be noted that upon request of the parties36 the court37 may give the settlement agreement a form of an award in which case it will have the same consequences as any other arbitral award.

To sum up the deliberations on the nature of employment settlements, atten-tion should also be given to the impact of the out-of-court settlements in a strict sense on the outcome of court proceedings in labour law matters. In particular, a question arises what will be the procedural consequences of a settlement agree-

33 See Art. 18313 KPC.34 See Art. 18414 KPC.35 See Art. 1198 in connection with Art. 1196 §1 KPC.36 A literal interpretation of Art. 1196 § 1 KPC suggests that the request should be joint therefore

it should be made both by the employee and the employer.37 See Art. 1196 § 2 KPC.

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ment concluded between the parties with no participation of a labour court dur-ing a trial. The starting point will be an observation that occurrence of that fact is not indifferent to court proceedings. Depending on the will of the parties, an out-of-court settlement in a strict sense may indirectly or even directly affect the course of the court proceedings. It affects the court proceedings indirectly where a plaintiff, as a result of conclusion of the settlement, withdraws his demand for legal protection by the labour court, raised in the statement of claim. It is worth emphasizing that it is not the out-of-court settlement in a strict sense but the withdrawal of the statement of claim that will result directly in issuance by the labour court of a decision on discontinuance of the proceedings. In such case a direct impact of the out-of-court settlement on the course of the court proceed-ings seems undisputable. It is an external stimulus for the plaintiff to withdraw the statement of claim.

The out-of-court settlement in a strict sense may also directly affect the course of the court proceedings, in particular their final outcome. I am thinking here of a situation where despite conclusion of such settlement the statement of claim has not been withdrawn. The labour court delivering a judgment in such case must take this fact into account38. This is because the court is obliged to in-clude in the judgment all the changes that have occurred between the parties in the course of the proceedings. In my opinion it applies also to the out-of-court settlement agreement in a strict sense, provided that it meets certain statutory conditions. Such settlement – to use the terminology applied in Art. 316 § 1 KPC – is an element of the state of affairs existing at the time when a court hearing is closed. In its judgment of 26.1.199939, the Polish Supreme Court rightly held that satisfaction by the defendant of the claims raised by the plaintiff under the out-of-court settlement concluded between them results in extinguishment of the obligation. The above findings allow concluding that the out-of-court settlement agreement in a strict sense is a substantive act which indirectly or even directly affects the outcome of the proceedings before a labour court.

38 The Polish Supreme Court rightly held (in a reasoning of a ruling of 22.11.1968, III, CZP 108/68, OSNCP 1969, No. 11, item 190, p. 24), that an out-of-court settlement agreement which regulates a relationship between the parties to a dispute before a court may significantly affect the outcome of the proceedings pending before the court.

39 I PKN 442/98, OSNAPiUS 2000, No. 6, item 217.


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§ 3. The scope of the freedom of contract in relation to settlement… agreements in individual labour disputes

In analysing the issue of settlement agreements in individual labour disputes, now I would like to focus on the freedom of contract40. The starting point will be an observation that in the labour law system an act in law, including a proce-dural act, may only have such content which is not prohibited by law41. This is based on the assumption that everything which is not forbidden is allowed. Such view fully corresponds with an opinion42 according to which the modern legal systems have adopted a model of general competence which does not close the freedom to create the contents of the acts in law within the framework laid down in statutory types of acts in law.

The table below presents the scope of the freedom of contract in relation to particular types of settlement agreements:

Type of a settlement

(agree-ments):

Negative prereq-

uisites of settlements

Out-of-court

settlement in a strict

sense

Concili-ation

settlement

Pre-trial settlement

Mid-trial settlement

Mediation settlement

Arbitration settlement

1 2 3 4 5 6 7Settlement contrary to law

Art. 58 § 1 of the Civil Code (KC)

Art. 253 of the Labour Code (KP) and Art. 255 § 2 KP

Art. 184 of the Code of Civil Procedure (KPC)

Art. 203 § 4 KPC in connec-tion with Art. 223 § 2 KPC

Art. 18314 § 3 KPC

Art. 58 § 1 KC in connec-tion with Art. 1214 § 1 (2) KPC

40 See: B. Wagner, Zakres… [Scope…], p. 14–20.41 See a different, positive approach under the civil law: S. Grzybowski, Prawo cywilne.

Zarys części ogólnej [Civil law. General part – an outline], Warsaw 1974, p. 245. 42 Z. Radwański, Zarys części ogólnej prawa cywilnego [An outline of the general part of civil law],

Poznań 1978, p. 208; M. Czachorski, A. Brzozowski, M. Safjan, E. Skowrońska-Bocian, Zobowiązania. Zarys wykładu [Obligations – an outline], Warsaw 2009, p. 149–150; C. Żuławska, Wokół zasady wolności umów [A freedom of contract], Acta Universitatis Wratislaviensis. Prawo pracy cywilistyczne 1994, No. 1960, p. 173 ff.

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1 2 3 4 5 6 7A settle-ment con-cluded to circum-vent law

Art. 58 § 1 of the Civil Code (KC)

Art. 58 § 1 KC

Art. 184 KPC

Art. 58 § 1 KC

Art. 18314 § 3 KPC


Settle-ment con-trary to the rules of social coexistence

Art. 58 § 2 KC

Art. 253 KP and Art. 255 § 2 KP

Art. 184 KPC

Art. 203 § 4 KPC in connec-tion with Art. 223 § 2 KPC

Art. 18314 § 3 KPC


Settlement contrary to a legiti-mate in-terest of an employee

Art. 256 KP

Art. 184 KPC in connec-tion with Art. 469 KPC

Art. 469 KPC

Art. 18314 § 3 KPC in connec-tion with Art. 469 KPC

Art. 1214 § 3 KPC in connec-tion with Art. 469 KPC

The limits of the freedom of contract in particular types of settlement agree-ments are not identical and this is because of different prerequisites which are prescribed by law and which set out the scope of the freedom of will of the par-ties. As I have already mentioned, they constitute an objective limit of conces-sions which may be agreed in a settlement. It is also worth noting that for a mid-trial settlement to be effective it is not important whether it has been concluded within the limits of the demands put forward in an application or a statement of claim. It is only important that the parties act within the limits of statutory free-dom of contract.

Following the specification of the scope of the freedom of contract in relation to particular types of settlement agreements in individual labour disputes, atten-tion should be given to the meaning of each of the listed prerequisites restrict-ing that freedom. I should start from a negative prerequisite which is a situation when a settlement agreement is contrary to law. First, it needs to be clarified why the terms „acts contrary to law” under Art. 58 § 1 KC and „settlement agreement (...) not in compliance with law (unlawful)” under Art. 253 and 255 § 2 of the Labour Code, Art. 183¹4§ 3 KPC, Art. 184 KPC and Art. 203 § 4 KPC in connec-

§ 3. The scope of the freedom of contract in relation to settlement…

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tion with Art. 223 § 2 KPC were classified as one prerequisite. This is because in the Polish legal system both of these expressions mean the same. Such interpreta-tion43 is supported by a general systemic interpretation based on a completudine and a coherentia directive.

What needs to be examined is the relation between the terms „contrary to law” and „not in compliance with law”. In common language the „contradiction” and „non-compliance” are synonyms. Therefore, a question arises whether the same applies in the case concerned. In my opinion, also under the provisions of the Civil Code, the Labour Code and the Code of Civil Procedure there are no grounds to differentiate between the meanings of these two terms. Therefore, I assume that a settlement agreement contrary to law means a settlement agree-ment not in compliance with law (unlawful). In this context it is worth noting that the assessment as to whether a declaration of an employee included in a set-tlement agreement on the waiver of any financial claims against the employer vi-olates the mandatory provisions of Art. 84 KP and therefore whether the entire settlement agreement or its part is invalid, should be preceded by determination of the actual contents of the settlement agreement44.

Since no settlement agreement concluded in the disputes involving claims arising out of employment relationship can be contrary to law, it further needs to be determined which provisions (norms), specifically, cannot be violated. I think that this applies only to ius cogens norms. In the labour law studies it is accept-ed45 that two options are possible: – the so-called imperatively annulling norms (called mandatory norms), – and imperatively replacing norms (called semi-im-perative or unilaterally binding norms). The mandatory norms do not allow for any derogation by the parties from the statutory regulations. This means that in a settlement agreement the parties cannot set out their mutual rights and obli-gations in a manner different to what is provided for in such norms. The above leads to a conclusion that the settlement agreement cannot be contrary to an im-perative norm, otherwise it will be null and void (Art. 58 § l KC in connection with Art. 300 KP)46.

43 See: P. Machnikowski, [in:] P. Machnikowski, E. Gniewek (eds), Kodeks cywilny. Komentarz [Civil Code. Commentary], Warsaw 2008, p. 137.

44 See a judgment of the Supreme Court of 1.2.2000, I PKN 503/99, OSNAPiUS 2001, No. 12, item 411, argument 2.

45 See in particular: J. Stelina, [in:] K.W. Baran (ed.), Zarys systemu prawa pracy. Część ogólna prawa pracy [Outline of labour law system. General part of labour law], vol. 1, Warsaw 2010, p. 246 ff.

46 An example of a settlement agreement which violates the mandatory norms is the settlement agreement in which the parties change the applicable periods of limitation of claims laid down in the Labour Code since undoubtedly the latter are iuris cogentis norms. See: T. Zieliński, [in:] T. Zieliński (ed.), Kodeks pracy. Komentarz [Labour Code. Commentary], Warsaw 2000, p. 1168.

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The situation is different where the contents of the settlement agreement vi-olate a semi-imperative norm. According to a prevailing view47, such norms do not allow any derogation to the detriment of an employee. Therefore, if a settle-ment agreement violates a semi-imperative norm, then under Art. 18 § 2 KP48 the provisions of the settlement which are less favourable to an employee than the provisions of the labour law will be null and void. In such case the invali-dated provisions will be replaced by respective provisions of the labour law49. This means that the limits of concessions to which an employee may commit in a settlement agreement are determined also indirectly in Art. 18 KP. It guaran-tees that at least the minimum rights granted to the employee under labour leg-islation are respected. It is worth noting that in practice a directive included in Art. 18 KP is significantly important in relation to out-of-court settlement agree-ments in a strict sense since in all other types of settlement agreements depriva-tion of an employee of the benefits due to him may be classified also as violation of his legitimate interest.

In my opinion, one of the measures restricting the freedom of contract with respect to all types of settlement agreements is also a prohibition established in Art. 58 § 1 KC (in connection with Art. 300 KP) to perform acts in law the pur-pose of which is to circumvent law. Just like above, the law (act) should be un-derstood to mean any mandatory provision of labour law. The circumvention of law consists in production of a certain legal effect prohibited by mandatory laws by such formulation of a legal transaction that externally and formally it is not contrary to law. Acts which may be considered in fraudem legis are only such acts in law the purpose of which is to produce an effect regarded negatively by a pro-vision containing a prohibition; however, when it refers to a different act in law which is not explicitly connected with such prohibition – only where such explicit prohibition relates to a certain effect and not only an admissibility of a certain act in law50. In my opinion a settlement agreement may be considered an act aimed at circumvention of law only where the parties intend to produce a legal effect prohibited by a norm of labour law not under the act in law with which such pro-

47 As regards Art. 18 § 2 KP, see also: T. Liszcz, Nieważność czynności prawnych w umownych stosunkach pracy [Invalidity of acts in law in the contractual employment relationships], Warsaw 1977, p. 108.

48 Although a semantic interpretation of Art. 18 KP suggests that this article applies only to the contracts of employment and other acts under which an employment relationship is established, still, as rightly pointed out by J. Wiśniewski (Postępowanie ugodowe w sprawach ze stosunku pracy [Set-tlement procedure in employment matters], NP 1982, No. 1–2, p. 73) – „a settlement agreement may relate to the basic elements of a contract forming the employment relationship”.


50 S. Grzybowski, Prawo cywilne... [Civil law...], p. 246.


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hibition is directly connected but under the settlement agreement itself. In such event the internal will of the parties who enter into the settlement agreement is aimed at the achievement of a prohibited purpose. Such settlement indirectly defeats the provisions of a mandatory legal norm. An example illustrating such situation may be a conclusion of a settlement agreement between an employee and an employer in a dispute concerning working conditions, under which the employee, in return for a higher remuneration, undertakes to perform work in the conditions contrary to the OHS regulations.

I think that under the Polish labour laws, a settlement agreement under which the parties indirectly reach the objectives prohibited by imperative or semi-im-perative legal norms should be considered inadmissible and invalid.

In the settlement agreements concluded in labour law matters the scope of the freedom of contract, apart from the two already mentioned negative conditions, is determined also by the rules of social coexistence. The point is that the mu-tual concessions in a specific settlement agreement should also be in compliance with such rules. The issues relating to the rules of social coexistence are broadly discussed in the literature. This includes both jurisprudence and the case-law of the Supreme Court. It will not be discussed here51. I will only focus on clarifica-tion what it means that a settlement agreement should be in compliance with the rules of social coexistence. I should start the analysis of compliance of a settle-ment agreement with the rules of social coexistence with an observation that in legal writings52 these rules are considered general clauses, i.e. statutory expres-sions of blurred scope, the meaning of which is established under non-legislative norms and rules53. In practice it means that a settlement agreement is in com-pliance with the rules of social coexistence if its provisions do not raise doubts in terms of ethical, moral and custom norms which apply to the workers’ con-cerned. However, the assessment whether a settlement agreement concerned is not contrary to the rules of social coexistence is possible only on a case by case basis. The outcome of such assessment will depend not only on the contents of a settlement agreement but also on the context in which such settlement agree-ment became effective. As rightly pointed out by the Supreme Court in the rea-soning to a resolution54 adopted on 17.10.1986, a settlement agreement which is

51 See: L. Morawski, Wstęp do prawoznawstwa [Introduction to jurisprudence], Toruń 1997, p. 41; A. Wypych-Żywicka, [in:] K.W. Baran (ed.), Zarys prawa pracy. Część ogólna prawa pracy [Outline of labour law. General part of labour law], vol. 1, Warsaw 2010, p. 775 ff. and the literature referenced there.

52 See for example: T. Zieliński, Klauzule generalne w prawie pracy [General clauses in labour law], Warsaw 1988, p. 5 and 9.

53 See: T. Zieliński, Prawo pracy… [Labour law…], p. 131; A. Wypych-Żywicka, [in:] Zarys… [An outline...], p. 782 ff.

54 III PZP 60/86, OSNCP 1987, No. 5–6, item 67.

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contrary to the rules of social coexistence is a settlement agreement which con-verts a termination of a contract of employment without notice into termination of a contract of employment upon mutual agreement of the parties, if a cause of the termination without notice was commission of an offence to the detriment of an employer or employee’s intoxication at work. Also, a settlement agreement in which it is agreed that a large amount of money misappropriated by an employee should be repaid in instalments payable for a period exceeding 50 years grossly violates the rules of social coexistence55. In such event we are facing violation of the social sense of justice56.

Apart from the restrictions mentioned above, the legislation in force requires that the contents of settlement agreements concluded in labour law matters must be in compliance with a legitimate interest (słuszny interes) of an employee. A key directive in this regard is established in Art. 469 KPC. What needs to be analysed first is the term „interest”. In particular it has to be established whether it is re-stricted to a legal interest of an employee. In my opinion, this concept includes not only a legal interest – which obviously is of great importance – but also a so-cial, economic and even personal interest. Such interpretation of the term „in-terest” is supported by lege non distinquente, nec nostrum est distinquere argu-ment. It is also important that if the legislature intended to narrow the scope of that concept, it might use in Art. 469 KPC the term „legal interest”, similarly to Art. 189 of that Code. Therefore, it seems reasonable to argue that a legitimate interest of an employee covers not only the interests directly related to the legal sphere of the employment relationship but also any other social and financial or personal benefits related to employment.

It is worth considering how the legitimate interest may be violated. It is not possible to discuss here in detail the concept of legitimacy (słuszność) as a factor stimulating the application of law. This is a complex matter57. It is because le-gitimacy is a vague concept, existing not only in law but also in morality, politics and religion. Therefore, I will focus on how this affects the scope of the freedom of contract in the settlement agreements mentioned above.

Because of the vagueness of the concept „violation of legitimate interest of an employee”, any attempt to make it unambiguous in specific circumstances is a priori doomed to failure taking into account their semantic properties. This al-lows the legal protection bodies to adjust their decisions to a specific situation and therefore to treat them individually. Therefore, one and the same concession

55 See a decision of the Court of Appeal in Lublin of 22.4.1999, III APZ 1/99, Apel – Lublin 1999, No. 2, item 10.

56 See a judgment of the Supreme Court of 29.4.2010, III PK 69/09, Legalis.57 See: Ch. Pereman, Logika prawnicza. Nowa retoryka [Legal logic. New rhetorics], Warsaw

1984, p. 109.


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made by an employee in a settlement agreement in one case may be classified to be in violation of his legitimate interest and in another case may be considered not violating such interest.

It is now worth considering how the violation of a legitimate interest of an employee can manifest itself in practice58. Usually the risk of such situation oc-curs where the provisions of a settlement agreement deprive an employee of eco-nomic and social benefits which are due to him. It is also important whether the applicable labour laws clearly and unequivocally specify the employee’s rights or they leave certain discretionary powers to the employer. In the former case the restriction in a settlement agreement of the rights of an employee should be con-sidered a breach of law. In the latter case, similar restrictions, depending on the facts of the case concerned, may be classified as violation of a legitimate interest of an employee. For example59, usually it is not in compliance with the interest of a pregnant worker who is subject to special protection to obtain as a result of a court settlement a compensation amounting to a monthly remuneration in-stead of reinstatement.

It is worth stressing that not every concession on the part of an employee vi-olates his legitimate interest. The Polish Supreme Court rightly held that60 there may be situations where employee’s concession in relation to some of his claims (under substantive law) may be in his good interest61. In particular this is the case where it is difficult to establish the disputable facts because of lack of clar-ity concerning law or facts. In such case, immediate satisfaction of a claim under the settlement agreement at the expense of giving up a small part of the claim pursued, will not undermine the legitimate interest of an employee. An example is a settlement agreement under which an employee received a monetary benefit amounting to the arithmetic mean, corresponding to the most favourable and least favourable factual situation. On the other hand, a settlement agreement un-der which an employee receives compensation disproportionate to the damage sustained is unacceptable. In my opinion undoubtedly such agreement grossly undermines the financial status of an employee and therefore violates his legiti-mate interest. It seems that in practice a legitimate interest of an employee is vio-lated usually when the employee who concludes the settlement agreement acts to

58 See a decision of the Supreme Court of 27.1.1999, I PKN 679/98, OSNAPiUS 2000, No. 7, item 275.

59 See a judgment of the Supreme Court of 5.7.2002, I PKN 172/01, OSNP 2004, No. 8, item 142.60 See a judgment of the Supreme Court of 12.3.1965, I PR 6/65, OSNCP 1966, No. 2, item 18.61 In a decision of 20.6.2000, I PKN 313/00, the Polish Supreme Court rightly held that a le-

gitimate interest of an employee within the meaning of Art. 469 KPC does not have to be identified with obtainment of the benefit due in full amount (OSP 2002, No. 7–8, item 94 with an approving commentary of S. Dalka).

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his own detriment as a result of coercion (usually mental coercion) or deception or the employee is not aware at all of the legal consequences of such act. To pre-vent such situation, the legal protection body should collect at least elementary information on the circumstances of a dispute concerned and on the employee.

Another issue of particular interest relating to the scope of freedom of con-tract in a settlement agreement is the problem of interrelations among the con-ditions determining such scope. A starting point for further deliberations will be an argument that such conditions are not mutually exclusive – on the contrary, they are often concurring. The provisions of one settlement agreement may vio-late two or even three negative conditions at the same time. In practice, it is most difficult to differentiate between contradiction of a settlement agreement with the rules of social coexistence and contradiction with a legitimate interest of an em-ployee. Undoubtedly such difficulty results from vagueness of meanings of both of the mentioned terms. This does not mean that they have the same meaning. In the legal writings it has been rightly pointed out that62 the compliance of a set-tlement agreement with the rules of social coexistence is determined on the basis of assessment of the terms and conditions of such settlement agreement in terms of the generally accepted ethical standards and as regards legitimacy of the inter-est – usually the economic and social factors are decisive. Logically, as regards the „employment” settlement agreement, it can be accepted that the relation be-tween the rules of social coexistence and a legitimate interest is an intersection relation. This means that there may be settlement agreements which violate both the rules of social coexistence and the legitimate interest. In the event of other negative prerequisites, such concurrence seems less likely.

Another question which needs to be answered is „what cannot be changed by the parties under a settlement agreement?”63. An answer to such question cannot be fully exhaustive. It is not possible to enumerate all possible situations. There-fore, I will focus on the problems which are of significant practical importance and at the same time controversial.

First, it must be said that in the context of labour laws in force a settlement agreement amending the periods of limitation of claims arising out of employ-ment relationship is unacceptable. This is due to the fact that the legal norms which set out the length of such deadlines are imperative, therefore they can be neither reduced nor extended by an act in law. Therefore, according to Art. 58 § 1 KC in connection with Art. 300 KP any provisions of a settlement agree-ment which reduce or extend the limitation periods are invalid. In my opinion,

62 See: B. Wagner, Zakres… [Scope...], p. 161.63 See: A. Ohanowicz, J. Górski, Zarys prawa zobowiązań [Law of obligations – an outline], War-

saw 1970, p. 513.


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the provisions of a settlement agreement which should be held invalid are also those which aim at circumvention of a prohibition laid down in Art. 291 § 4 KP.

Many doubts arise in connection with settlement agreements concluded be-tween an employee and an employer, regarding disputes arising from termination or expiration of a contract of employment. Particularly controversial is a question whether it is acceptable to change in a settlement a mode of termination of a con-tract of employment. In a ruling64 of 22.2.1985, the Polish Supreme Court held that under the provisions of the Labour Code a settlement agreement amending a statement on termination of a contract of employment without notice made by a work establishment is unacceptable. In a resolution of 17.10.1986, the Su-preme Court departed from that view. According to the recent case-law, parties may enter into a court settlement under which they transform the termination of a contract of employment without notice into a termination of a contract of employment by mutual agreement of the parties also without changing the date of termination of the contract, if the statement of the employer on the earlier ter-mination of such contract has validly been revoked and conclusion of such settle-ment is not contrary to law, to the rules of social coexistence and to a legitimate interest of the parties. A condition sine qua non of such change is a valid revoca-tion by the employer – upon consent of an employee – of the declaration of will on termination of the contract of employment without notice. Such conduct of the parties does not go beyond the freedom of contract which may be exercised by them by virtue of law in employment relations. In the system of labour law there is no legal norm which would exclude such possibility and on the basis of an argument that everything which is not forbidden is allowed the parties to an employment relationship may change under a settlement agreement the mode of termination of a contract of employment65. The above applies not only to court settlements but also, ab exemplo, to out-of-court settlements66.

The admissibility of revocation by the employer of his statement on termina-tion of a contract of employment without notice follows explicitly from the pro-visions of Art. 61 KC which applies in labour and employment relations through Art. 300 KP. It seems that the effectiveness of such act is dependent on the con-sent of an employee who is the addressee of the statement on the immediate ter-

64 I PRN 6/85, OSNCP 1985, No. 12, item 199.65 A different opinion is presented by K. Rączka, [in:] Glosa do uchwały składu siedmiu sędziów

SN z 17.10.1986 r. [A commentary to a resolution of 7 judges of the Supreme Court of 17.10.1986], III PZP 60/86, No. 3, p. 84.

66 A detailed argumentation in support of the view according to which in such categories of set-tlement agreements the parties may change the mode of termination of a contract of employment is presented by A. Świątkowski, [in:] Glosa do uchwały… [A commentary to a resolution…]), p. 443–445.

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mination of the employment relationship67. On the other hand, under the pro-visions of the Civil Code the admissibility of revocation of a statement of will is not dependent on whether a legal relationship concerned is in effect. Therefore, an employer may avoid a statement of will even following the end of such rela-tionship. Consequently it results in reactivation of the employment relationship which may then be terminated in a different manner. This may be both a notice of termination of a contract of employment and mutual agreement of the parties.

§ 4. Control of the settlement agreements in individual labour disputes

The provisions of labour law and civil procedural laws impose on the le-gal protection bodies hearing individual labour disputes an obligation to control the settlement agreements concluded between an employee and an employer. I should start with the analysis of control exercised ex officio by the legal protec-tion bodies. According to the provisions of Art. 253 KP68, the conciliation com-missions must control the contents of each settlement agreement concluded be-tween the employee and the employer in terms of their compliance with law and with the rules of social coexistence. Such actions are undertaken by the commis-sion on its own initiative. It should be emphasized that there are no legal obstacles which would prevent a party involved in a dispute from requesting appropriate control activities to be undertaken. However, a question arises what steps should be taken by the conciliation commission if the latter determines that a draft set-tlement negotiated between the employee and the employer is not in compliance with law or with the rules of social coexistence. The laws in force do not regulate this issue. Therefore, in such event the issuance by the commission of a „deci-sion” which opposes the conclusion of such settlement is not appropriate since there are no respective provisions in the statutory regulations governing the out-of-court conciliation procedure. It is therefore sufficient if the conciliation com-mission refuses to enter the contents of the settlement agreement in the minutes of the conciliation hearing. It seems useful to enter in such minutes a note on the refusal to enter the settlement agreement in the minutes and on the statements made by the parties in this regard. This information will then be of significant

67 See in particular: Z. Radwański, Zawarcie umowy i dokonywanie innych czynności prawnych [Conclusion of a contract and other acts in law], [in:] S. Grzybowski (ed.), System prawa cywilnego – część ogólna [System of civil law – a general part], vol. 1, Wrocław 1985, p. 577.

68 See: J. Piątkowski, [in:] K.W. Baran (ed.), Kodeks pracy. Komentarz [Labour Code. Commen-tary], Warsaw 2012, p. 1319–1320.


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importance if the matter is referred to a labour court. Moreover, the minutes should include the arguments in support of the decision of the conciliation com-mission on the refusal to consider the settlement agreement acceptable.

Also the labour court must, on its own motion, control the contents of court settlements concluded between the employee and the employer. It should verify the provisions of the settlement concluded by the parties in terms of their compli-ance with the conditions laid down in applicable laws69. Under Art. 184 and 460 KPC, a court is obliged to intervene in each case when it considers that a settle-ment violates the statutory scope of the freedom of contract. The situation is dif-ferent under Art. 203 § 4 KPC in connection with Art. 223 § 2 KPC. In such event the court may declare that a mid-trial settlement is unacceptable only where such settlement is contrary to law or to the rules of social coexistence or is aimed at circumvention of law70.

Under the laws in force, the control of the contents of a conciliation settle-ment (ugoda pojednawcza) by a labour court may also be carried out upon re-quest71. The labour legislation provides for two types of the procedure in which the provisions of such settlement agreement may be verified. In my opinion a dis-tinction can be made between:– a general procedure,– a special procedure.

They differ not only as regards the scope of the control but also as regards entities entitled to initiate the procedure. It is also worth noting that initiation of a control procedure according to the general rules is not time-limited while a claim for nullification of a conciliation settlement may be filed only within a time-limit laid down in Art. 256 KP.

The control of mediation settlements (ugody mediacyjne) by the labour court is also carried out upon request. This is subject to a procedure laid down in Art. 18314 KPC. A respective request may be filed by each of the parties. Depending on the substantive character of a settlement agreement, this is done either in ac-cordance with a procedure stipulated in § 1 of the mentioned provision or in the course of the procedure for declaration of enforceability of a mediation settle-ment (Art. 18314 § 2 KPC). As part of the control, a labour court verifies whether the settlement is not contrary to law or the rules of social coexistence or wheth-

69 See a judgment of the Supreme Court of 1.2.2000, I PKN 503/99, OSNAPiUS 2001, No. 12, item 411 and a decision of the Supreme Court of 11.10.1995, I PRN 69/95, OSNAPiUS 1996, No. 8, 119.

70 See in particular: T. Wojciechowski, Kontrola… [Control…], p. 639 ff. and K.W. Baran, [in:] Kodeks pracy… [Labour Code...], p. 48 ff.

71 In the further deliberations I will not discuss the issue of control of a conciliation settlement upon request of a party as a result of filing an adverse claim (powództwo opozycyjne) and an action for performance (powództwo o świadczenie) from before the settlement.

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er it is not aimed at circumventing law. If the courts establishes any of the facts mentioned above, it will refuse declaration of enforceability in whole or in part.

A similar control mechanism applies in relation to arbitration settlements (ugody polubowne). The enforceability is declared by a court upon request of a party. The party must submit a copy of the settlement agreement as well as the original arbitration clause (zapis na sąd polubowny)72. The court should issue a respective decision73. If the settlement agreement has been concluded in breach of the fundamental principles of the legal order of the Republic of Poland, the court will refuse to declare its enforceability.

I should now focus on the control of pre-trial and mid-trial settlements car-ried out on request by a labour court. This raises various doubts. Particularly im-portant is the procedure in which a party may seek annulment of a court settle-ment because of its invalidity. It should be kept in mind that a statement made in a settlement concluded before a court may, equally with other declarations of will, be defective and thus invalid. In the case of a court settlement74 it may be either absolute invalidity or relative invalidity.

In particular, a (court) settlement will be relatively invalid in a situation where the settlement has been concluded as a result of threat, fraud or an error. Accord-ing to the provisions of Art. 918 KC, applicable in the labour legislation through Art. 300 KP, an error results in a relative invalidity of a (court) settlement only if such error refers to facts which were considered indubitable by both parties, and the dispute or uncertainty would not arise if the parties knew the real facts at the time of conclusion of the settlement. This means that avoidance of the (court) settlement is possible only where the parties acted on the ground of the so-called „false certainty”75. It should be clarified that76 this must be in a causal link with the dispute or the uncertainty in such sense that if at the time of con-clusion of the (court) settlement the parties had known the real facts, the dispute or the uncertainty would not have arisen and therefore conclusion of the settle-ment (also a court settlement) would not be necessary. A logical consequence of the mechanism adopted in Art. 918 § 1 KP is § 2 of that provision. It excludes the possibility of avoidance of a settlement if an error as to the claims covered by the settlement occurred as a result of loss of evidence which subsequently was found.

72 See Art. 1164 KPC.73 See Art. 1214 § 1 KPC.74 The comments presented below concerning the substantive invalidity of some of the court

settlements apply, mutatis mutandi, also to other categories of settlements concluded in individual labour disputes.

75 See more: A. Kozaczka, Błąd jako wada oświadczenia woli (od błędu w pobudce do błędu usprawiedliwionego) [Error as a defect in consent (from an error in motive to an excusable error)], vol. 23, Cracow 1961, p. 87–8.

76 Z. Masłowski, Uznanie... [Admission…], p. 49.


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The legislature decided that the new legal situation created under the (court) settlement deserves greater protection than the actual situation that the parties decided not to enforce. The only exception is made in a situation where a party entered into a settlement in bad faith, that is where the party knew of the exist-ence of the evidence at the time of conclusion of the settlement and did not dis-close it to the other party.

In this respect it is worth noting that the findings of fact and the legal assess-ment according to which a party to a settlement agreement cannot avoid its dec-laration of will made as a result of an error because the conditions laid down in Art. 918 KC and Art. 88 KC are not met, does not preclude the finding that the settlement concerned is contrary to law or to the rules of social coexistence or violates a legitimate interest of an employee77.

Returning to the subject of control of the court settlements by the labour courts upon request of entitled parties, it is worth emphasizing that the legal mechanisms adopted in this regard in the legislation differ depending on whether a settlement is a mid-trial settlement or a pre-trial settlement. What I mean here is that in the case of a pre-trial settlement the control on request may be carried out only in separate proceedings. De lege lata, it is not legally possible to challenge it before a higher court in the course of the judicial conciliation procedure. As regards the mid-trial settlement the situation is slightly different since it may be controlled not only in a separately commenced procedure but also in the procedure in which the settlement has been concluded. In such case a complaint against a decision of the labour court on discontinuance of the proceedings may apply if it was based on a mid-trial settlement agreement. In this respect I find appropriate a stand-point presented by the Supreme Court in a decision of 20.12.200078, according to which the possibility of a party to revoke a declaration of a procedural represent-ative regarding conclusion of a settlement agreement, which revocation is made in a complaint against a decision of the court on discontinuance of the proceed-ings, does not exclude judicial review in terms of compliance with law, with the rules of social coexistence and a legitimate interest of an employee and the con-ditions for the avoidance of a declaration of will under the provisions of civil law.

A party concerned may seek avoidance of both types of court settlements on grounds of their invalidity, also through:– a declaratory action to establish the invalidity (powództwo o ustalenie

nieważności),– an adverse claim (powództwo opozycyjne).


78 I PKN 650/00, OSNAPiUS 2000, No. 16, item 383.

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Apart from the examples mentioned above, a party may invoke invalidity of a settlement in any proceedings where the outcome of such proceedings is de-pendent on validity or invalidity of the settlement79. This applies also to an action for performance from before the settlement.

Attention should be given to each of the mentioned mechanisms of control of the contents of court settlements in labour law matters. I should start with a de-claratory action to determine the invalidity (powództwo o ustalenie nieważności) of a court settlement. Its basis is Art. 189 KPC. The above findings concerning the legal mechanism enabling avoidance of a conciliation settlement on grounds of its non-compliance with law or with the rules of social coexistence apply simi-larly also to both types of court settlements. However, it should be emphasized that a judgment of a labour court establishing that a court settlement violates a le-gitimate interest of a work establishment is declaratory.

In describing a declaratory action to establish invalidity of a court settlement (both mid-trial and pre-trial settlement) it must be noted that in the event of rel-ative invalidity of the settlement, an action brought by one of the parties to the employment relationship should be classified as making an implied (per facta concludentia) statement on the avoidance of a defective declaration of will.

Apart from the abovementioned procedure for verification of contents of a court settlement, the legislation in force provides that a labour court may, on request, control the contents of some types of court settlements by an adverse claim (powództwo opozycyjne). Its legal basis will be Art. 840 § 1 (1) KPC. It pro-vides that a debtor may demand that an instrument permitting enforcement may be declared not enforceable if it is inconsistent with the facts on the basis of which the enforceability clause was obtained. In this case the instruments permitting enforcement may be not only both types of court settlements but also80, media-tion settlements and81 arbitration settlements82. In such case the purpose of an adverse claim will be to declare a specific settlement unenforceable – in whole or in part – through a definitive suspension of an enforcement procedure83. In prac-tice, bringing such claim means that the plaintiff opposes a settlement (concili-ation, mediation, pre-trial or mid-trial settlement) as an instrument permitting enforcement. In order to achieve the desired purpose through an adverse claim,

79 J. Lapierre, Ugoda… [Court settlement...], p. 125.80 See Art. 777 (1) and (3) KPC.81 See Art. 18314 § 2 KPC.82 See Art. 1212 § 1 KPC.83 See in particular: K. Korzan, Sądowe postępowanie zabezpieczające i egzekucyjne w sprawach

cywilnych [Judicial safeguard and enforcement procedure in civil matters], Warsaw 1986, p. 209–210; idem, Wykonanie orzeczeń w sprawach o roszczenia pracowników ze stosunku pracy (Studium te-oretyczno-procesowe), [Enforcement of judgments in matters involving workers’ claims arising out of employment relationship (Theoretical and procedural aspects)], Katowice 1985, p. 94.


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the plaintiff must prove that a settlement concerned is legally defective (for ex-ample invalid as a result of its unlawfulness) and therefore should not be enforce-able. Consequently, the adverse claim will result in re-examination of the settle-ment by the court84. If the adverse claim is allowed, the settlement constituting an instrument permitting enforcement will not be enforceable and therefore will be invalidated. Such judgment is constitutive since it establishes a new normative state between the parties to an employment relationship85.

The court and out-of-court settlements may be reviewed by the labour court, upon request, in separate proceedings, also where one of the parties to an em-ployment relationship brings an action regarding a benefit/performance which has already been a matter in dispute and in respect of which the parties have al-ready concluded a settlement agreement. In such event an impulse initiating such control will be a rei transactae plea raised by the defendant (the so-called exceptio rei transactae)86. In such case the labour court, in order to resolve the case, will first need to establish whether the settlement concluded between the parties is valid and has legal effects. For that purpose the court should verify the contents of the settlement as appropriate. It should be noted that a similar verification may take place in any other trial in which the outcome of the case is dependent on declaration by the labour court of validity or invalidity of the settlement.

As regards an out-of-court settlement in a strict sense, the judicial control may take place in the proceedings for declaration of invalidity of such settlement in accordance with Art. 189 KPC, or in the course of proceedings pending be-tween the same parties and relating to the same claim or in any other proceed-ings in which a party raises a plea of nullity of the settlement.

To sum up, in my opinion the settlement agreements are controlled by the judicial protection bodies in terms of respecting the applicable labour legislation and legitimate interests of the parties to an employment relationship. Therefore, it may be concluded that the control is one of the instruments which guarantee re-spect for justice and rule of law in the labour and employment relations. De lege lata, the system of control of settlements is strongly varied, depending on the phase of a dispute during which the settlement has been concluded. According to the adversarial principle (audi alteram partem) a control on request prevails. Only exceptionally the legal protection bodies act on their own motion, without an impulse from an interested party.

84 See also: L. Brzozowski, Egzekucja sądowa w sprawach z zakresu prawa pracy [Judicial enforce-ment in labour law matters], Sł. Prac. 1986, No. 11, p. 6.

85 K. Korzan, Sądowe... [Judicial...], p. 212; idem, Wykonanie... [Enforcement...], p. 215.86 H. Trammer, Ugoda wedle przepisów kodeksu postępowania cywilnego [Settlement agreement

according to the provisions of the Code of Civil Procedure], Cracow 1933, p. 43–44.

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Chapter 7. Separate procedure in labour law matters

D. Książek, M. Wujczyk

§ 1. Separate procedure in labour law matters and a procedural… model in individual labour disputes

D. Książek

The issues relating to procedural norms in the context of labour legislation are two-dimensional. The first dimension affects court proceedings and the sec-ond dimension covers any other out-of-court model of hearing a labour dispute. While the procedural structure of the out-of-court model is simple due to priority of application of out-of-court norms, the court model of resolution of labour dis-putes is more complex. In the literature on labour law and civil procedure there are three basic models presented. These include a general model, a special model and a heterogeneous model. The two former are characterised by a specific pro-cedural distinctness implied by the objective to be achieved by the model con-cerned. On the other hand, a heterogeneous model is a specific mosaic of selected norms of the general and the special model.

The general model is identified with the norms governing resolution of dis-putes in a large sense, i.e. not only labour disputes but all these which are gov-erned by the „general” civil procedure. The special model means all norms which, through their distinctness, govern only labour disputes in a strict sense. The het-erogeneous model is a combination of the two previous models and it establishes a group of norms relatively coherent to each other. It is accepted that the hetero-geneous model is the one applicable in the Polish legal system1.

1 K.W. Baran, Procesowe prawo pracy [Procedural labour law], Cracow 2003, p. 240–241.

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The model is regulated in the provisions governing the separate procedure in labour law matters. Legal scholars have identified several factors justifying dis-tinction within the civil proceedings of a separate procedure for hearing such disputes. The first to mention is a protective nature of the norms regulating the separate procedure in question2. An employee, as a weaker party, needs support in order to compensate for the actual, economic and social inequality in rela-tion to the employer3. These regulations are an element of a formal protection of worker’s rights4. In this context the principle of protection of the legitimate in-terest of an employee or the principle of particular care for employee’s interest is considered a fundamental principle of the separate proceedings in labour law matters5. Because of the importance of the matters heard by the labour courts, the legislature decided to make the proceedings between an employee and an em-ployer less formal. The principle of limited procedural formalism is reflected in a number of provisions governing the separate proceedings, for example those governing the procedure for filing a statement of claim by an employee, sum-mons or service of process.

Distinguishing a separate procedure for claims pursued in labour law matters was dictated by the desire to speed up delivery of a judgment. This is based on the assumption that the subject-matter of disputes heard in the procedure in question is of significant importance for an employee, therefore they should be resolved as soon as possible6. An employee, as a weaker party to the procedure, often does not have sufficient resources to prevent the lengthiness of the procedure there-fore it is necessary to provide him with institutional support through appropriate formation of procedural laws. This is often called a principle of speed of process.

And finally, the separation of proceedings in labour law matters is justified by the necessity to comply with a directive of amicable resolution of disputes. In fact, this principle is best reflected in that the parties may resolve disputes through conciliation procedure prior to commencement of proceedings before a labour court.

The above assumptions and principles are reflected in the specific provisions governing the separate procedure in labour law matters which will be described further in this chapter.

2 W. Siedlecki, [in:] W. Siedlecki, Z. Świeboda, Postępowanie cywilne. Zarys wykładu [Civil pro-cedure – an outline], Warsaw 2004, p. 342.

3 T. Liszcz, Prawo pracy [Labour Law], Warsaw 2008, p. 497.4 L. Florek, Ochrona praw i interesów pracownika [Protection of worker’s rights and interests],

Warsaw 1990, p. 22.5 A.M. Świątkowski, Zasady prawa pracy [Principles of labour law], p. 149.6 K.W. Baran, Sądowy wymiar sprawiedliwości w sprawach z zakresu prawa pracy [Justice sys-

tem in labour law matters], Warsaw 1996, p. 262 ff.

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§ 2. Parties to the court proceedings in labour law matters

D. Książek

The general principle of bipartite proceedings adopted in the Polish civil pro-cedure applies also to judicial proceedings in labour law matters. There is a plain-tiff on one part, and a defendant on the other part. A plaintiff is a person who initiates the procedure by bringing an action to court (is qui rem in iudicium de-ducit), and the defendant is a person against whom the action is brought by the plaintiff (is contra quem res in iudicium deducitur)7.

Prima facie, it is not difficult to define the parties to the proceedings in la-bour law matters. These are an employee and an employer, thus largely parties to an employment relationship. Worth emphasising is the expression „largely” since the meaning of some of these concepts existing in the provisions of the Labour Code is not identical with the equivalent concepts existing under the provisions of the Code of Civil Procedure. In the literature on the subject8 an argument is raised that the different meanings of both of the legal definitions follow from the content of the concept of „labour law matter”. It covers not only matters arising directly out of employment relationship but also matters which under the provi-sions of the Code of Civil Procedure are subject to separate proceedings such as the proceedings in labour law matters.

According to a definition included in Art. 2 of the Labour Code, an em-ployee is a person employed under a contract of employment (umowa o pracę), appointment (powołanie), election (wybór), nomination (mianowanie) or a co-operative contract of employment (spółdzielcza umowa o pracę). The scope of designators of the term „employee” is complemented by Art. 476 (5)(1) KPC which provides, explicite, that an employee should mean also a member of an agricultural production cooperative, a person performing work under a home-based work agreement as well as members of the family and heirs of an employ-ee, of a member of an agricultural production cooperative and of a person per-forming work under a home-based work agreement as well as other persons who may raise labour law claims under separate laws or a person raising compen-

7 A. Zieliński, Postępowanie cywilne. Kompendium [Civil procedure. A compendium], 13th edi-tion, Warsaw 2012, p. 60.

8 M. Manowska, Postępowanie odrębne w procesie cywilnym [Separate procedure in civil pro-ceedings], 3rd edition, Warsaw 2012, p. 70.


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sation claims against a work establishment or claiming declaration of existence of rights to benefits in respect of accidents at work and occupational diseases. However, as regards the latter, the legal basis of employment of such persons is irrelevant in legal terms9. Implicite, an employee within the meaning of Art. 467 (5)(1) of the Code of Civil Procedure (KPC) is not only a former employee10 but also a person who will acquire such status in the future11. This applies in a situation where a person pursues a claim before a labour court for conclusion of the final contract of employment or demands declaration of existence of an employment relationship12.

A procedural opponent of an employee in the proceedings in labour law mat-ters is an employer. Contrary to the dual meaning of the term „employee” under the Labour Code and the Code of Civil Procedure, the concept of the „employer” is consistent under both of the mentioned legal acts13. This is a consequence of legislative measures adopted under the Act of 2.7.2004 on the amendment of the Code of Civil Procedure and certain other acts which removed14 the incompat-ibility of terminology between Art. 460 (1) KPC and Art. 3 KP15. According to a legal definition included in the latter provision an employer is an organisation-al unit 16, also this without a legal personality, as well as a natural person if they employ employees. On the basis of that definition, an auxiliary enterprise (gosp-odarstwo pomocnicze) of a local government budgetary unit may be considered an employer only where its independence covers the right to employ workers17. In concreto, by the mere fact that workers are hired and dismissed within an or-ganisational unit, solely on the basis of an authorization granted by a manager of

9 K.W. Baran, Procesowe… [Procedural…], p. 243.10 M. Manowska, Postępowanie odrębne… [Separate procedure…], p. 70.11 J. Gudowski, [in:] T. Ereciński (ed.), Kodeks postępowania cywilnego. Komentarz. Postępowanie

rozpoznawcze [Code of Civil Procedure. Commentary. Fact-finding proceedings], vol. II, Warsaw 2012, p. 706. See also: J. Iwulski, Nowelizacja kodeksu postępowania cywilnego ze szczególnym uwzględnieniem spraw z zakresu prawa pracy i ubezpieczeń społecznych (bez problematyki dotyczącej kasacji) [Amendment of the Code of Civil Procedure, including in particular labour law and social insur-ance matters (excluding cassation)], PS 1996, p. 38 ff.

12 Judgment of the Supreme Court [SN] of 19.5.2011, I PK 264/10, Legalis.13 J. Bech, Pojęcie pracodawcy w systemie prawa polskiego [A concept of an employer in the Polish

legal system], Studia z zakresu prawa pracy i polityki społecznej 1999–2000, p. 147 ff.14 Journal of Laws [Dz.U.] No. 172, item 1804.15 J. Gudowski, [in:] T. Ereciński (ed.), Kodeks postępowania cywilnego. Komentarz. Postępowanie

rozpoznawcze [Code of Civil Procedure. Commentary. Fact-finding proceedings], vol. II, Warsaw 2012, p. 651.

16 See: M. Piankowski, Pracodawca jako jednostka organizacyjna i strona stosunku pracy [An em-ployer as an organisational unit and a party to an employment relationship], Gdańskie Studia Prawnicze 2005, No. XIV, p. 956 ff.

17 Judgment of the Supreme Court of 14.12.2004, I PK 135/04, OSNAPiUS 2005, No. 15, item 224, p. 684.

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the establishment comprising the unit concerned, such organisational unit does not obtain the status of an employer within the meaning of Art. 3 KP18. The sta-tus of an employer within the meaning of Art. 3 KP is granted to an entrepreneur who is a natural person and runs business under an entry in a business register and not by his enterprise understood as organised tangible and intangible assets intended for business activity (Art. 55¹ KC)19. A natural person may be an em-ployer not only where the work performed for such person is connected with the business activity of such person20. A separated organisational unit of a civil law partnership employing workers is an employer within the meaning of Art. 3 KP and has a capacity to be a party to legal proceedings (zdolność sądowa) and to act in such proceedings on its own behalf (zdolność procesowa) (Art. 460 § 1 KPC), however, if an action is brought against a civil law partnership then not only the partnership but also all the partners should be named as plaintiffs21. In the event of claims of judges employed in courts, the defendants are the courts which in-deed employ the judges as employers, in particular an employer of the judges or of the president of a district court (sąd rejonowy) is neither a State Treasury nor a president of the regional court (sąd okręgowy), but the court in which they per-form their service or function22. A similar rule applies to the state administration bodies (employment offices or regional labour inspectorates) and the local gov-ernment units. Therefore, an employer is an office concerned and not the town or commune mayor managing such unit23.

In some situations it may be difficult to determine who is the employer, and therefore against whom the action should be brought. This applies in particular in the case of ownership transformations. A transfer of an undertaking in the course of the proceedings regarding payment of remuneration for work does not deprive the former employer of the capacity to act as a defendant in the pro-ceedings pending. It is also irrelevant whether it was a transfer of an undertak-ing within the meaning of the provisions of the Civil Code or a succession within the meaning of Art. 23¹ KP24. If the plaintiff employee came in the course of the pending trial to the conclusion that his employer was some other entity and not

18 M. Mędrala, Funkcja ochronna… [The protective function…], p. 139 and the literature ref-erenced there.

19 Judgment of the Supreme Court of 22.8.2003, I PK 284/02, MoPr 2004, No. 12, p. 3. 20 Judgment of the Supreme Court of 14.3.2001, II UKN 274/00, OSNAPiUS 2002, No. 21,

item 533.21 Decision of the Supreme Court of 29.1.1999, II UKN 507/98, OSNAPiUS 2000, No. 11,

item 447.22 Decision of the Supreme Court of 27.10.2005, I PK 138/05, Legalis. Resolution of the Polish

Supreme Court [SN] of 23.7.1993, I PZP 30/93, OSNCP 1994, No. 6, item 123.23 K.W. Baran, Procesowe… [Procedural…], p. 244 and the case-law referenced there.24 Judgment of the Supreme Court of 10.1.2003, I PK 87/02, OSNAS 2004, No. 13, item 223, p. 591.


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the defendant who in principle has the capacity to be a party to legal proceed-ings and the capacity to act on its own behalf in the proceedings, it is not a matter of invalidity of the proceedings because of the lack of the capacities mentioned above but because of the possible lack of capacity to act as a defendant25. If, how-ever, such proceedings ended with issuance of a ruling against the employer who did not participate in the case in question as a defendant party, since the proceed-ings were conducted against an entity who did not enjoy the status of a defend-ant party, it would lead to invalidity of the proceedings because of deprivation of a party of the possibility to protect its rights (Art. 379 (5) KPC)26. It is necessary to stress that the court should27, ex officio, summon a person to participate in the case if it appears that the action of an employee has not been brought against a person who should be a defendant or where the court establishes that the ac-tion relating to the claim concerned should be brought also against other persons (Art. 477 first sentence in connection with Art. 194 §1 and 3 KPC). The court should issue the summons in a form of a decision at a hearing28 and only in the case in which the plaintiff is an employee and not an employer.

A similar formal construct, also ex officio, is the obligation of the court to ap-point a curator ad litem for a party who does not have a capacity to act on its own behalf in the proceedings, who does not have a statutory representative, as well as for a party who does not have a body appointed to represent it if the plaintiff takes immediate actions against the other party (Art. 69 in connection with Art. 460 § 2 KPC). According to the lege non distinguente principle, this applies to both parties, the employee and the employer.

§ 3. Procedural representatives in labour law matters

D. Książek

In the proceedings in labour law matters, as in the case of other proceedings conducted under provisions of the Code of Civil Procedure, each of the parties

25 Decision of the Supreme Court of 13.12.2004, II PK 248/04, Legalis.26 Judgment of the Supreme Court of 13.9.2006, II PK 360/05, OSNP 2007, No. 17–18, item 248,

p. 725, Legalis.27 Judgment of the Supreme Court of 24.9.2009, II PK 78/09, Legalis.28 Resolution of the Supreme Court of 7.1.2010, II PZP 13/09, OSNP 2010, No. 13–14, item 155,

p. 534, Legalis.

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may be represented by a representative29. An entity representing the parties in the civil procedure acts in their name and on their behalf. Depending on the ba-sis of the authorization, a distinction is made between statutory representation based on law and a representation based on a declaration of a represented party30.

The representation in litigation is a special type of representation referred to in Art. 95–109 KC. It is established under the provisions of the Code of Civil Procedure and in matters not regulated there the provisions of the Civil Code shall apply31. A power of attorney covers, ipso iure, an authorization to perform any procedural acts connected with the case concerned and may be either gen-eral, authorizing to conduct all cases in which the principal is involved or a spe-cial authorization to conduct one specific case. Moreover, it is possible to grant a power of attorney to perform only some of the procedural acts such as lodging an appeal or a complaint32. In labour law matters there is an explicit derogation from the general principle described in the previous sentence. Under Art. 465 § 2 KPC, collection of the amounts awarded in favour of an employee requires a special power of attorney granted after issuance of an instrument permitting enforcement.

A procedural representative must, at the first procedural step, attach a power of attorney with the signature of the principal or a certified copy of such power of attorney with a copy for the opposite party (such obligation is not applica-ble in the electronic order for payment procedure set out in Art. 497–505 KPC (postępowanie upominawcze)). A lawyer (adwokat or radca prawny) may on his own certify a power of attorney granted to him and other documents confirming his authorization for conformity with the originals. However, a court retains the right to demand an official certification of signature of the parties. Such obliga-tion is laid down, excplicte, in Art. 89 § 1 KPC and applies not only to a power of attorney granted orally in accordance with Art. 89 § 2 KPC33.

According to a general rule, a procedural representative in labour law mat-ters may be a professional lawyer (adwokat, radca prawny), a person managing the assets or the interests of a party or a person in a permanent mandate rela-tionship with a party, if the subject-matter of the case falls within the scope of such mandate or a joint participant in a dispute (Art. 87 § 1 first sentence KPC).

29 K.W. Baran, Procesowe… [Procedural…], p. 244; see also: W. Gawrylczyk, Pełnomocnictwo procesowe [A power of attorney for litigation], MoP 2001, No. 2, p. 85 ff. and A. Zieliński, Przepisy o pełnomocnikach po nowelizacji KPC [Provisions on procedural representatives after the amendement of the Code of Civil Procedure], MoP 2004, No. 17, p. 779 ff.

30 A. Zieliński, Postępowanie cywilne... [Civil procedure...], p. 75–76.31 W. Gawrylczyk, Pełnomocnictwo… [A power…], p. 85.32 K.W. Baran, Procesowe… [Procedural…], p. 244.33 W. Gawrylczyk, Pełnomocnictwo… [A power…], p. 86.


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Moreover, the representatives may also be parents, a spouse, siblings or descend-ants of a party or persons in adoptive relationship with a party (Art. 87 § 1 second sentence KPC), as well as a representative of a trade union or a labour inspector or an employee of the establishment in which the principal is or was employed (Art. 465 § 1 KPC).

On the other hand, as regards representatives of employers, apart from the persons mentioned above under Art. 87 § 1 first sentence KPC, a procedural representative of a legal person or an entrepreneur, including this without a legal personality, may also be an employee of that unit or of its superior body. How-ever, the Supreme Court held that34 a judge of a general court cannot be a rep-resentative of the court being an organisational unit of State Treasury. A legal person providing, under separate laws, legal services to an entrepreneur, a legal person or other organisational unit, may grant a power of attorney – on behalf of the entity to whom it provides legal services – to a lawyer if it has been duly authorized to do that by such entity (Art. 87 § 2 KPC). It is worth noting that as regards a person acting as a representative under Art. 87 § 1 KPC who remains in a permanent relationship of mandate with a party, in evaluating the effective-ness of the granted power of attorney it is not important whether the mandate covered representation of the principal before a court but the fact that the need to demand resolution by the court arises out of or in connection with the facts covered by the previously granted mandate35.

Moving on to the specific category of representatives in civil-law matters specified in Art. 462 and 465 KPC, I should start the analysis with a representa-tive of a trade union. The limits of application of Art. 465 in connection with Art. 7 (2) of the Act on trade unions follow from a contrario interpretation of that latter provision. A company trade union organisation, as a rule, does not represent rights or interests of members of another trade union. Only by way of exception a trade union may represent an employee who is not a member of any trade union provided that such employee is a staff member of the work estab-lishment concerned36. In abstracto, from a formal perspective, a representative of a trade union acting as a procedural representative in labour law matters is ob-ligated on one hand to submit a power of attorney obtained from an employee in accordance with the general rules and on the other hand, a power of attorney from a trade union in a situation where such representative is not a statutory rep-resentative of the trade union acting in the name of the trade union under the

34 Resolution of the Supreme Court of 28.11.2012, III CZP 75/12, Legalis.35 Judgment of the Supreme Court of 6.7.2012, V CSK 337/11, Legalis.36 Decision of the Supreme Court of 17.9.2004, III PZ 10/04, Legalis.

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statute (constitution) of the latter or other authorization37. In concreto, the same representative of a trade union may represent the employee in labour law mat-ters and even lodge a cassation appeal in the name of the employee, irrespective of whether he has proven the authorization to act in the name of a trade union provided that he is a professional lawyer (radca prawny) and has submitted to court a power of attorney for litigation granted by the employee in accordance with the general rules38. In practice, more and more often trade union organisa-tions have their „own” legal services and therefore very often a representative of an employee – a member of the organisation – is a professional (even within the meaning of the Code of Civil Procedure) legal representative.

As from the amendment of the Code of 2.2.1996, a procedural representative of an employee in labour law matters may also be a labour inspector. A directive established in Art. 465 § 1 KPC in relation to labour inspectors applies, implic-ite, to the inspectors of both the National Labour Inspectorate and the Social La-bour Inspectorate, in accordance with the lege non distinguente nec rostrum est disniguere principle39, as well as for systemic reasons40. Adoption of other con-cept would lead to unauthorized limitation of the scope of application of Art. 465 § 1 KPC.

An employee may also be represented by an employee of the establishment at which the represented employee is or was employed (Art. 465 § 1 KPC). Prima fa-cie, it would be reasonable to argue that the mentioned directive applies not only to an employee of the last work establishment at which the employee (plaintiff) is or was employed. However, for teleological reasons, it would be difficult to accept that it does not have to be an employee of the establishment involved in the dis-pute. In my opinion, this holds true when an employee of a work establishment is entitled to „be” a representative of another, present or past, employee, taking into account his knowledge which, in concreto, was underlying the dispute between the employee-principal and the employer. A posteriori, it is difficult to find argu-ments in support of appointment as a representative of a person with whom the employee-plaintiff concerned worked but at the work establishment other than the establishment involved in the dispute. My opinion is based on argumentum ad absurdum. It would be difficult to imagine the social consequences in a situa-tion where an employee could be represented by a person meeting only one cri-terion, i.e. criterion of work together with the employee-plaintiff. It seems that,

37 Decision of the Supreme Court of 19.4.2006, II PZ 6/06, Legalis.38 Decision of the Supreme Court of 12.1.2012, II PZ 37/11, Legalis.39 K.W. Baran, Organizacyjno-procesowe aspekty nowelizacji ustawodawstwa pracy z 2.2.1996 r.

[Organisational and procedural aspects of the amendment of labour laws of 2.2.1996], PiZS 1996, No. 7, p. 46–47.

40 M. Mędrala, Funkcja ochronna… [The protective function…], p. 146.


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implicite, such condition is the previously mentioned knowledge of facts under-lying the dispute pending before a court. However, in my opinion the latter is not sufficient to grant such persons an authorization to act as a representative in la-bour law matters. In principle, there are no interpretation difficulties as regards an employee of an organisational unit of an employer or of its superior body (Art. 87 § 2 KPC) acting as a representative of the employer. This is because that regulation applies, explicite, to the employee of the entity involved in the dispute.

A representative of a party may be each joint participant in the proceedings, except an intervener since the latter does not enjoy the status of joint participant.

A labour court is obligated, at each stage of the case, to take into account the correctness of the authorisation of the representative of a party. In relation to the higher courts, such obligation follows, explicite, from Art. 379 (2) KPC in con-nection with Art. 378 § 1 and Art. 398¹³ KPC41. In concreto, after the action is brought, the court may allow that an urgent procedural step is taken by a per-son who is unable to prove its authorization at the given time (but who, in prin-ciple, can be a representative). The court can make it conditional upon provi-sion of a security for costs. This is laid down, expressis verbis, in Art. 97 § 1 KPC. The above regulation applies to urgent procedural steps undertaken in the course of the proceedings, on a temporal basis, already after the action has been brought and not before the action is brought42. In such case the court is, implicite, obli-gated to specify a time-limit within which the person acting without a power of attorney should submit such power of attorney or submit approval of his ac-tions by the party. Otherwise the court will disregard the procedural steps taken by that person in which case the opposite party may demand the person acting without authorization to refund the costs resulting from the temporary admis-sion of such person to the proceedings (Art. 97 § 2 KPC). It is worth noting that the disregard of the procedural steps taken by the person not holding a proper authorization – the falsus procurator – does not result in discontinuance of the proceedings but may be grounds for liability for damages of the party who failed to approve the activities taken by the falsus procurator. The legal basis will be pro-visions of the Civil Code43. The consequence of the sanction laid down in Art. 97 § 2 KPC, namely the disregard of the steps taken by the person without a respec-tive authorization, is that the proceedings shall continue with the participation of a party itself or a duly authorized representative of the party if such is appointed. If the lack of proper authorization of a representative of a party results in inva-lidity of the proceedings (Art. 379 (2) KPC), the proceedings cannot continue.

41 A. Zieliński, Postępowanie cywilne… [Civil procedure…], p. 79.42 Decision of the Supreme Court of 24.5.2012, II CSK 466/11, Legalis.43 A. Zieliński, Postępowanie cywilne… [Civil procedure…], p. 79.

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In such situation a judgment cannot be delivered. This results in discontinuance of the proceedings44.

The power of attorney expires in the case of: its revocation by the principal, revocation by the representative, death of a party or loss of capacity to be a party to legal proceedings, death of the representative or loss by the representative of procedural capacity or qualifications.

According to lege non distinguente principle, a party may also revoke a pow-er of attorney for litigation granted to a court-appointed lawyer (pełnomocnik z urzędu) under Art. 94 § 1 in connection with Art. 118 § 1 KPC45. The revo-cation should be categorical. It is effective towards a court at the time when the court is notified of that fact and it is effective upon the opposite party and other participants in the proceedings at the time when they are notified by the court of that fact. It is also important to continue the actions on behalf of the party con-cerned for a period of two weeks, unless the principal has explicitly released the representative from that obligation46.

As regards expiration of a power of attorney in the event of death of a party or loss of the capacity to be a party to court proceedings, there is a view presented in the literature on the subject according to which the capacity to act on behalf of the deceased party or a party who lost the capacity to be a party to court pro-ceedings within the meaning of Art. 96 KP is based on a specific type of a power of attorney, an ipso iure power of attorney, restricted to any and all actions aimed at suspension of the civil proceedings47.

44 Decision of the Supreme Court of 19.3.1969, I CZ 106/68, OSNCP 1970, No. 1, item 8, with a commentary of W. Siedlecki, Przegląd Orzecznictwa SN, PiP 1970, No. 10, item 575.

45 Judgment of the Supreme Court of 19.10.2011, II CSK 85/11, Legalis.46 W. Gawrylczyk, Pełnomocnictwo… [A power…], p. 89.47 Z. Krzemiński, Pełnomocnik w sądowym postępowaniu cywilnym [A representative in the court

civil proceedings], Warsaw 1971, p. 146 ff. and A. Zieliński, Komentarz do art. 96, teza 3 [Commentary to Art. 96, argument 3], [in:] A. Zieliński (ed.), Kodeks postępowania cywilnego. Komentarz [Code of Civil Procedure. Commentary], Warsaw 2012, Legalis.


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§ 4. Institution of judicial proceedings in labour law matters

M. Wujczyk

4.1. Forms of institution of judicial proceedings in labour law matters

In labour law matters the judicial proceedings are instituted when:– a statement of claim is filed (action is brought in court),– a conciliation commission forwards a request for conciliation,– the content of the claim is put on record by an employee (the action brought

is entered in the minutes).The date of filing the statement of claim is the date when it is submitted

to court (to the court mail department or a specific court department) if the statement of claim is filed in person or posted in a Polish post office (Art. 165 § 2 KPC)48.

As regards the proceedings in labour law matters, it is possible to initiate the proceedings as a result of forwarding a request for conciliation by a conciliation commission. According to Art. 254 KP such request should be forwarded by the conciliation commission if the conciliation procedure did not end with the con-clusion of a settlement agreement and the employee demanded that such appli-cation be forwarded within 14 days of the end of the conciliation procedure. For-warding the files of the case without a previous demand of the employee will not result in institution of judicial proceedings.

Article 466 KPC provides that court proceedings may be initiated also where an oral statement of claim is put on the record by an employee not represented by a lawyer. This is one of essential elements of the principle of limited proce-dural formalism the purpose of which is to facilitate pursuance of claims by em-ployees49. The claim made orally is accepted by an appointed court secretary who should record it in written minutes. The minutes should contain the neces-

48 It should be noted that proceedings are initiated also where a statement of claim is filed by a soldier with the commander of a military unit or by an imprisoned person with an administration office of a prison or by a member of crew of a Polish sea-going vessel – with the master of the vessel (Art.163 § 3 KPC). However, in labour law matters such cases will be very rare.

49 See: H. Mądrzak, O pojmowaniu naczelnych zasad postępowania cywilnego [The meaning of the fundamental principles of the civil procedure], [in:] E. Łętowska (ed.), Proces i prawo. Rozprawy prawnicze [Trial and law. Legal studies], Wrocław 1989, p. 394.

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sary data required for a pleading under Art. 126 KPC50. Filing the claim orally will be effective only if an employee appears in person at court and it cannot be limited to filing a pleading which includes an application for exercise of the right laid down in Art. 466 KPC. According to a standpoint presented by the Supreme Court, the right stipulated in Art. 466 KPC cannot be exercised by an employee who is a lawyer (radca prawny)51. The Supreme Court explained its standpoint by reference to a functional interpretation of the mentioned provision and point-ed out that „a function of that regulation is to provide procedural assistance to an employee or an insured who is helpless and is unable to properly take certain procedural steps on his own, and not to relieve the burden of the party who can cope with the situation”. In my opinion such standpoint cannot be justified under Art. 466 KPC and leads to arbitral differentiation of employees in the course of the court proceedings in labour law matters depending on the assessment of the court as to the helplessness of the person bringing an action.

4.2. Contents of a statement of claimGenerally, the first pleading in court proceedings is a statement of claim

(pozew). For that reason it should meet certain requirements. First, it should contain all the elements required for a pleading, including: 1) a name of the court to which it is addressed, name and surname or business name of the parties, their statutory representatives and attorneys; 2) a name of the pleading; 3) the contents of an application or a declaration and evidence in support of the circumstanc-es pleaded; 4) signature of a party or of its statutory representative or attorney; 5) list of annexes (Art. 125 § 1 KPC). Moreover, the statement of claim should include: 1) a precise specification of the claim; 2) description of facts in support of the claim; 3) specification of the value of the matter at issue in matters regard-ing property rights, unless the subject-matter of a dispute is a specified monetary amount; 4) if needed, mentioning the facts in support of jurisdiction of a court (Art. 187 KPC).

According to Art. 125 § 2 KPC if a specific provision so requires, the plead-ings should be submitted on official forms. In labour law matters such require-ment will apply in the case of claims which should be examined in simplified procedure, that is in a situation where a claim pursued arises from a contract of employment (or other contract or agreement, if any, relating to a contract of

50 See: J. Brol, [in:] K. Piasecki (ed.), Kodeks postępowania cywilnego. Komentarz [Code of Civil Procedure. Commentary], vol. I, Warszawa 2006, p. 1683.



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employment, for example non-compete agreement) and the value of the matter at issue does not exceed PLN 10 000 (Art. 5051 (1) KPC). Failure to submit the statement of claim on an official form should be considered a formal defect which needs to be corrected. In such event the court should call upon a party to file the statement of claim on an appropriate form within one week, otherwise the state-ment of claim will be returned to the party. Such court order addressed to a party not represented by a professional attorney should specify the defects of the plead-ing and the consequences of its return and repeated filing. Within one week from the date of service of the statement of claim it may be filed again by the plaintiff. If the statement of claim does not have any defects, it is effective from the date on which it has been originally filed. However, it does not apply in the event of repeated return of the statement of claim.

It should be considered that a statement of claim may be drawn up on a form which constitutes a computer printout according to sample forms available on the Internet. Therefore, it is not necessary to use sample forms available in court buildings. There are also no legal grounds to argue that a printout of such form should be two-sided52. No entries in the form can be whited out or erased. It is because such actions might raise doubts as to whether the changes made are in accordance with the will of a party53. However, the fields of the form which must be deleted should be deleted in any form, provided that it is clear (line, cross, dotted lines).

In labour law matters supplementing or correcting a statement of claim which does not meet the formal requirements laid down in Art. 187 KPC depends on whether the statement of claim is filed by the employer or the employee. If it is filed by the employer, then under Art. 130 § 1 KPC the court will call upon the party to correct or complement it within one week, otherwise the statement of claim will be returned. However, a wrong name of a pleading or other obvious inaccuracy does not constitute an obstacle that would prevent processing and dealing with such pleading in due course. If the statement of claim is not cor-rected or supplemented within the specified time-limit, the presiding judge will return it to the employer. The returned statement of claim has no effects which are normally associated with filing a pleading with a court. A statement of claim is returned under a court order which should include a respective reasoning. The court order is subject to a complaint (Art. 130 § 1–4). If a statement of claim is filed by an employee, the presiding judge will call upon the employee to remove

52 See: K. Kołakowski, [in:] K. Piasecki (ed.), Kodeks postępowania cywilnego. Komentarz [Code of Civil Procedure. Commentary], vol. I, Warsaw 2006, p. 488.

53 See: A Paterek, Posługiwanie się formularzami w postępowaniu uproszczonym [Forms in the simplified procedure], PS 2002, No. 11–12, p. 103.

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the formal defects of the pleading only where such defects cannot be removed in the course of the preliminary inquiries. (Art. 467 § 3 KPC). These may include for example missing evidence, failure to specify the defendant or the registered seat of the defendant, failure to provide a copy of the statement of claim for the opposite party. However, the following formal defects cannot be removed during the preliminary inquiries: filing a statement of claim without a signature, failure to specify the value of the matter at issue, imprecise formulation of the claim or the appeal.

It must be kept in mind that the statement of claim and the successive plead-ings should be drawn up in Polish. The obligation is laid down in Art. 4 (1) of the Act of 7.10.1999 on the Polish language54 (ustawa o języku polskim). The Polish language is the official language of the constitutional state authorities. If a state-ment of claim is prepared in a language other than the Polish language, this should be considered a formal defect.

4.3. Consequences of filing a statement of claimFiling a statement of claim has certain consequences both under procedural

and substantive law. Under procedural law, filing a statement of claim means:

– perpetuation of the court’s competence (perpetuatio forum) – Art. 15 KPC,– perpetuation of the national jurisdiction (perpetuatio jurisdictionis) – Art. 1097

KPC.On the other hand, under substantive law, filing a statement of claim results

in:– interruption of a time-limit for declaring a settlement concluded in the course

of conciliation procedure ineffective (Art. 256 KP),– interruption of the limitation periods (Art. 295 § 1 KP),– interruption of the period to file an appeal against a notice of termination of

a contract of employment (Art. 264 § 1 KP),– interruption of the period to file an appeal against a termination of a contract

of employment without notice period (Art. 264 § 2 KP),– interruption of the time-limit to demand entry into an employment relation-

ship in the event of refusal to hire (Art. 264 § 3 KP),– possible application of anatocism, i.e. taking interest on outstanding interest

(Art. 482 §1 KC).

54 Journal of Laws [Dz.U.] of 2011, No. 43, item 224 as amended.


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4.4. Parties entitled to file a statement of claim in labour law matters

The parties entitled to bring actions in labour law matters before a labour court are:1) an employee,2) an employer,3) a public prosecutor,4) a non-government organisation,5) a state labour inspector,6) an Ombudsman (Rzecznik Praw Obywatelskich).

Particular attention should be drawn to the parties mentioned in points 4 and 5.

A labour inspector is authorised to bring declaratory actions on behalf of citi-zens to determine the existence of an employment relationship. Both the material and personal scope of that provision raises numerous doubts.

A literal wording of these provisions might imply that a subject-matter of an action initiated by the inspector may be exclusively a demand to declare the existence of an employment relationship. However, taking into account the a maiori ad minus and a simile rules of interpretation, filing a statement of claim by the inspector should be allowed in the following situations:1) in matters regarding determination of particular elements of such legal rela-

tionship,2) in matters relating to determination of non-existence of an employment rela-

tionship, if it is in the interest of a natural person concerned.Thus, I do not share the opinion according to which the labour inspector can-

not bring the actions mentioned above55. On the other hand, I think that a stand-point according to which it is possible, under Art. 631 KPC, to bring action in matters in which the claim is different but is based on the determination of ex-istence of an employment relationship, is too far-reaching. This would lead to unauthorised extension of powers of the labour inspector 56. It should be kept in mind that the civil procedural laws governing the entitlement to take procedural actions on behalf of an employee by a labour inspector are an exception and can-not be interpreted broadly.

The regulation in question does not authorise a labour inspector to bring ac-tion on behalf of an employer.

55 See: J. Iwulski, Udział… [A labour…], p. 25.56 See: K. Flaga-Gieruszyńska, [in:] A. Zieliński, K. Flaga-Gieruszyńska, Kodeks postępowania

cywilnego. Komentarz [Code of Civil Procedure. Commentary], Warsaw 2008, p. 121.

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Certain doubts may arise also as to whether the labour inspector referred to in Art. 631 KPC should mean only a state labour inspector (państwowy inspektor pracy) or also a social labour inspector (społeczny inspektor pracy). In my opin-ion Art. 631 applies only to a state labour inspector. The Act on the social labour inspection (ustawa o społecznej inspekcji pracy), unlike the Act on the National Labour Inspectorate (ustawa o Państwowej Inspekcji Pracy) (Art. 10 (1)(11) of the Act on the National Labour Inspectorate) does not mention within the tasks of the social labour inspection the right to join, upon consent of an interested par-ty, the pending proceedings in matters in which declaratory judgment regarding existence of an employment relationship is sought.

Bringing action by a labour inspector is based on his assessment and is not subject to judicial review. Although the labour inspector should be guided by the interest of an employee on whose behalf he brings action, it cannot be excluded that his actions will be motivated also by a collective interest. Moreover, a lack of consent or objection of an employee does not result in the loss by the inspec-tor of his capacity to bring an action and carry out the proceedings57. However, in such case it may be difficult for the inspector to prove a legal interest to which the inspector is obliged in accordance with the general rules.

Although a labour inspector may, at his discretion, bring a declaratory ac-tion for determination of existence of an employment relationship on behalf of an employee, he may join the proceedings only upon consent of the employee. Such mechanism does not seem reasonable. Since a labour inspector may, with-out employee’s consent, initiate the proceedings, there are no reasonable grounds to find that joining such proceedings (which is less fundamental than bringing an action) should require consent of the plaintiff. Employee’s consent is required only for a labour inspector to join the proceedings in a matter in which declara-tory judgment regarding existence of an employment relationship is sought and not to bring an action on behalf of the employee58. A question arises what should be the form of plaintiff ’s consent for the labour inspector to join the proceedings. The Code of Civil Procedure does not require any specific form, therefore I think that such consent may be given in any form, even by implication. Obviously it is desired that the plaintiff makes an explicit statement as to the participation of the labour inspector in the commenced proceedings, for example through an ap-propriate declaration.

A labour inspector may join the proceedings at any stage pending delivery of a final judgment, as well as when the case is heard by the Supreme Court.


58 Ibidem.


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The status of the labour inspector in the proceedings is unclear. While there is no doubt that a labour inspector is a party to the proceedings instituted at his own initiative, it is not that certain where he joins the procedure upon em-ployee’s consent. This was subject to analysis by the Supreme Court in a judg-ment of 2.4.199859. This ruling underlined that the position of a labour inspec-tor in the proceedings which he joined is specific. The inspector is not a party in a strict sense and no provision orders application to such inspector of the rules applicable to a party or a joint participant (the situation is different where an ac-tion is brought on behalf of a named person – Art. 56 § 1 in fine KPC). How-ever, undoubtedly, the labour inspector is a participant (actor) in the proceed-ings. The Supreme Court pointed out that the inspector joining the proceedings on the part of the plaintiff is always connected with the latter. The status of the inspector is closest to the status of an intervener (interwenient uboczny) (even if the intervener is not a party to the proceedings he is treated as such by the case-law)60. On the basis of the above, the Supreme Court concluded that the view expressed in relation to an intervener should refer to the labour inspector who joined the case and who should therefore be considered a party to the proceed-ings within the meaning of Art. 379 (5) KPC61. In my opinion, such standpoint may, with caution, be extended to other situations where a labour inspector is treated as a party.

Under Art. 96 (1)(8) of the Act on court fees (ustawa o kosztach sądowych) the labour inspector is exempt from court fees. However, he not always has the same rights as the employee acting as a plaintiff. A labour court does not have to ad-vise the labour inspector on the procedural steps as laid down in Art. 212 KPC62.

In matters regarding determination of existence of an employment relation-ship instituted by a labour inspector or joined by a labour inspector, the provi-sions on the public prosecutor apply respectively. In the literature it is pointed out that the provisions of Art. 55 sentence no. 1, Art. 56, Art. 58 first sentence


60 See a resolution of the Supreme Court of 28.12.1967, III CZP 87/67, OSNC 1968, No. 6, item 97.

61 Consequently, the Supreme Court held that failure to inform a labour inspector who joined the proceedings regarding determination of the existence of an employment relationship (Art. 61(1) KPC) of a date of the hearing at which a judgment was delivered, results in invalidity of the proceed-ings because of the fact that the inspector has been deprived of an opportunity to defend his rights (Art. 379 (5) KPC).

62 See: T. Niedziński, Ingerencja administracyjna i procesowa organów PIP w sferę uznanej wolności pracodawcy zatrudnienia pracowników [Administrative and procedural interference by the National Labour Inspectorate in the employer’s recognized freedom to employ workers], MoPr 2008, No. 1, p. 8.

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and Art. 59, Art. 60 § 1 third and fourth sentence, Art. 60 § 2 and Art. 106 KPC will apply respectively in their entirety. The following will not apply: Art. 60 § 1 second sentence, Art. 54, Art. 55 second sentence, Art. 57, Art. 58 second sen-tence 2, Art. 871 § 2, Art. 3981, 3983 § 2, Art. 3985 § 2, Art. 3988, 449, 457, 546 § 2, Art. 5981 § 1, Art. 768 KPC63. It should be considered that in a situation where a person on whose behalf a labour inspector brought an action in court joins the proceedings, the provisions on the uniform joint participation (współuczestnictwo jednolite) will apply respectively64.

According to Art. 462 KPC, in labour law and social insurance matters the non-government organisations may – within their statutory tasks and upon a written consent of an employee or an insured – bring actions on behalf of the employee or appeal against decisions of pension authorities (organy rentowe) and may also join the employee or the insured in the pending proceedings upon their written consent. This provision gives greater powers to non-government organi-sations to represent a party in the judicial proceedings as compared with Art. 61 §1 KPC which specifies the powers of non-government organisations in judicial proceedings. As regards the employment matters, the latter provision authorizes only to bring actions and join the pending proceedings concerning protection of equal treatment and non-discrimination with regard to unjust direct or indirect differentiation of rights and obligations of citizens.

A non-government organisation may bring action on behalf of an employ-ee or join the pending proceedings only upon written consent of the employee. Such consent should be attached to the statement of claim or to a letter of acces-sion of the non-government organisation to the proceedings (Art. 61 § 4 KPC). The consent of an employee cannot be implied, for example where an employee is not responding to the actions undertaken by such organisation in the course of the proceedings65.

In the labour law matters the non-government organisations may bring ac-tions only within their statutory tasks.

The non-government organisations include, among others, organisations for the protection of human rights, pensioners’ organisations, youth organisations66. They include also trade unions.

63 See: K.M. Sychowicz, [in:] K. Piasecki (ed.), Kodeks postępowania cywilnego. Komentarz [The Code of Civil Procedure. Commentary], vol. I, Warsaw 2010, p. 290.

64 See: K.W. Baran, Organizacyjno-procesowe… [Organisational and procedural…], p. 12. Op-posite view: J. Iwulski, Udział… [Participation… ], p. 28.

65 See: M. Kurzynoga, Udział związków zawodowych w postępowaniu cywilnym po stronie pracownika w świetle zmian KPC [Participation of trade unions in civil procedure on the part of an employee according to the amended Code of Civil Procedure], MoPr 2012, No. 6, p. 290.

66 See: T. Stręk, Indywidualne spory pracy [Individual labour disputes], Cracow 2004, p. 260.


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A trade union which brings an action on behalf of an employee cannot bring a declaratory (judgment) action to determine existence of a legal relationship or a right relating to that trade union and cannot invoke its own interest to obtain such declaration67.

Under Art. 462 in connection with Art. 61 KPC, a workplace trade union or-ganisation has a capacity to initiate the proceedings only on behalf of an employ-ee employed at the establishment covered by its activity68.

I support an opinion according to which a trade union organisation which unites fewer members than the number specified in Art. 251 of the Act on trade unions does not have a capacity (locus standi) to bring action on behalf of an em-ployee under Art. 462 KPC in connection with Art. 61 KPC, cannot participate in such proceedings and therefore cannot lodge an appeal against a judgment of a court of the first instance69.

The provisions on bringing actions by a public prosecutor on behalf of a named person apply respectively to non-government organisations which bring actions on behalf of natural persons, except for Art. 58 second sentence KPC. As regards accession of non-government organisations to the pending proceed-ings, the provisions on intervention (interwencja uboczna) will apply respective-ly, exclusive of the provisions on uniform joint participation (współuczestnictwo jednolite). Therefore, the role of a non-government organisation is merely to as-sist a party to the proceedings.

A public prosecutor and an Ombudsman (Rzecznik Praw Obywatelskich) may bring actions in labour law matters both on behalf of an employee and on behalf of an employer (Art. 55 KPC). They are also entitled to bring a counterclaim70.

4.5. Consequences of service of a statement of claim Service of a statement of claim upon the opposite party results in suit pending

(lis pendens). This has important implications in respect of pending proceedings (specified in Art. 192 KPC):

67 See a judgment of the Supreme Court (SN) of 24.6.1998, I PKN 186/98, OSNAPiUS 1999, No. 13, item 424.

68 See a resolution of the Supreme Court of 5.7.2002, III PZP 13/02, BSN 2002, No. 7, p. 3.69 See the ruling of the Supreme Court of 9.5.2008, II PK 316/07, OSNAPiUS 2009, No. 19–20,

item 250.70 For more see: M. Piotrowska, Kilka refleksji w związku z udziałem prokuratora w postępowaniu

cywilnym [Several comments on the participation of a public prosecutor in the civil procedure], PUG 1994, No. 5, passim; M. Masewicz, Prokurator w postępowaniu cywilnym [Public prosecutor in the civil procedure], Warsaw 1975, p. 5.

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1) new proceedings between the same parties and concerning the same claim cannot be initiated in the course of the proceedings already pending,

2) transfer, in the course of the proceedings, of an asset or a right under dispute does not affect the further course of the proceedings; however, the transferor may be replaced by the transferee upon consent of the opposite party,

3) a defendant can bring a counterclaim against the plaintiff. According to Art. 192 (1) KPC, the lis pendens occurs at the time of service of

the statement of claim upon the defendant and not when the action is brought. This means that when there are two proceedings pending, the plea of lis pendens is raised in respect of the case in which the statement of claim was later served upon the defendant71. If the statement of claim was filed orally on the record, the consequences of service of the statement of claim arise at the moment of service of a copy of the minutes upon the defendant.

A lis pendens (pending lawsuit) occurs in the case of:1) identity of the parties – this means that in both cases the parties are the same,

however, they do not necessarily have to act in the same procedural roles. The identity of the parties occurs also where legal successors of an employee or of an employer appear in the proceedings after they have accessed them under law or under an agreement,

2) identity of claims – this means that the statements of claim and their factual grounds (the facts justifying the demands) are the same72.It is worth noting that in the labour law matters the legislature introduced an

exception from the rule laid down in Art. 199 KPC that a court, upon finding that court proceedings are inadmissible, should reject a statement of claim. Accord-ing to Art. 464 KPC, in such case the labour court should refer the case to a com-petent authority. A consequence of that regulation is an obligation of a court of general competence to hear the case in a situation where the other body previ-ously considered itself not competent73.

It is pointed out that Art. 464 KPC should be interpreted restrictively there-fore the plea of arbitration clause results in rejection of the statement of claim and not in referral of the case to the arbitration tribunal74.

71 See a decision ofthe Supreme Court of 28.5.1982, IV CZ 80/82, Legalis.72 See: A. Zieliński, [in:] A. Zieliński, K. Flaga-Gieruszyńska, Kodeks postępowania cywilnego.

Komentarz [Code of Civil Procedure. Commentary], Warsaw 2008, p. 347.73 See: A. Zieliński, Prawo do sądu a struktura sądownictwa [Right to a fair trial and the structure

of the judiciary], PiP 2003, No. 4, p. 20–31.74 See: M. Malczak-Herdzina, Uprzywilejowanie procesowe pozycji pracownika w świetle prz-

episów kodeksu postępowania cywilnego a konstytucyjna zasada równości wobec prawa (art. 32 ust. 1 Konstytucji RP) [Procedural favourability of an employee under the provisions of the Code of Civil Procedure and the constitutional principle of equality before the law (Art. 32 (1) of the Constitution of


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4.6. Counterclaim In labour law matters it is possible to bring a counterclaim provided that con-

ditions laid down in Art. 204 KPC are met. According to this provision, a coun-terclaim is admissible in two cases:1) a counterclaim of the defendant is in relation with the claim of the plaintiff,2) a counterclaim of the defendant can be offset against the claim of the plaintiff.

The laws do not specify which claims are related. Such relation may be both legal and factual. The possible offset of claims should be taken into account in the context of Art. 498 et seq. of the Civil Code. It should be noted that a de-fendant who wishes to satisfy his claim may, instead of making a counterclaim, invoke a right of set-off which allows for elimination of the need to pay a court fee. Therefore, making a counterclaim will in principle be beneficial only where the amount claimed in the counterclaim exceeds the claim pursued in the state-ment of claim.

A counterclaim can be brought not earlier than when a copy of a statement of claim is served upon the defendant. It may be either in a statement of defence (odpowiedź na pozew) or in a separate pleading, however, not later than at the first hearing (the first hearing before a competent court which has a jurisdiction (ratione loci and ratione materiae).

A counterclaim should meet the formal requirements laid down for an ordi-nary statement of claim in Art. 126 and 187 KPC.

If a claim cannot be treated as a counterclaim (because it has been brought too late or the circumstances justifying it were not met), it should be heard in separate proceedings, excluded from the files of the present case and treated as an ordinary statement of claim. Also, it may be necessary to transfer such state-ment of claim to a competent court75. A similar situation may occur in the case of rejection or withdrawal of the original claim.

In a case brought by an employee and regarding claims arising out of an employment relationship, a district court – labour court, cannot refuse to hear a counterclaim of the work establishment involving a claim in respect of finan-cial liability of an employee if the conditions laid down in Art. 204 KPC have been met76.

According to the provisions of Art. 204 (3) KPC and Art. 193 (1) and (3) KPC, the claims in the counterclaim may be extended even after the first hearing. Even

the Republic of Poland)], Studia z Zakresu Prawa Pracy i Polityki Społecznej 2010, p. 305; Decision of the Supreme Court of 6.5.1999, I PN 140/99, OSNAPiUS 2000, No. 14, item 549.

75 See a decision of the Supreme Court of 21.2.1983, I CZ 173/72, OSP 1973, No. 9, item 187.76 See a resolution of the Supreme Court of 4.10.1994, I PZP 41/94, OSNAPiUS 1995, No. 5,

item 63.

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if the additional claims raised by the counter-plaintiff did not correspond with the requirements laid down in Art. 204 (1) KPC, still according to the procedur-al provisions which guarantee special protection of employees’ claims (Art. 460 (1) first sentence and Art. 467 (1) in fine KPC) such non-corresponding counter claims of an employee arising from an employment relationship should be imme-diately transferred by the deciding court to separate proceedings77.

In a case brought by a work establishment involving a claim in respect of fi-nancial liability of an employee, the employee may bring a counter-claim regard-ing employment if the conditions laid down in Art. 204 KPC have been met78.

4.7. Change of partiesIf in the course of the proceedings it appears necessary to make changes on

the part of the plaintiff or on the part of the defendant, the laws provide for the possibility to issue a so-called third party notice (dopozwanie).

Articles 194–196 KPC governing the personal change of the claim provide for five situations in which transformations are possible. This applies where an action was brought:– not against a person who should be a defendant in the case concerned (Art. 194

§ 1 and § 2 KPC),– not against all persons who may stand as defendants (Art. 194 § 3 KPC),– not against all persons whose participation in the case concerned as defendants

is necessary (Art. 195 KPC),– not by a person who should be a plaintiff in the case concerned (Art. 196 KPC),– not by all persons whose participation in the case concerned as plaintiffs is

necessary (Art. 195 KPC).In principle, the personal transformations are made by the court upon request

of the plaintiff or, in the cases referred to in Art. 194 § 1 KPC, also upon request of the defendant. In labour law matters there is an exception to the above prin-ciple. According to Art. 477 KPC in the proceedings initiated by the claim of an employee, a court may issue a third party notice (dopozwanie) referred to in Art. 194 § 1 and § 3 KPC also on its own motion (ex officio). In the jurisprudence it is disputable whether the expression „a court may” used by the legislature means only that issuing a third party notice is at the discretion of the court79 or that the court hearing the case must ex officio issue a third party notice even without a re-

77 See a judgment of the Supreme Court of 1.2.1967, III PR 95/66, Legalis.78 See a resolution of the Supreme Court of 27.5.1988, III PZP 16/88, OSNCP 1989, No. 11,

item 177.79 See: K. Flaga-Gieruszyńska, [in:] A. Zieliński, K. Flaga-Gieruszyńska, Kodeks postępowania

cywilnego. Komentarz [Code of Civil Procedure. Commentary], Warsaw 2008, p. 773.


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spective request from the plaintiff80. In my opinion the latter should be consid-ered correct. This is supported by the ratio legis of that provision which is pro-tection of a worker as a weaker party. A similar view was presented by the Polish Supreme Court with the reservation that the abovementioned obligation exists provided that a worker does not clearly oppose to calling an entity concerned to participate in a dispute as a party81.

A court issues a third party notice to participate in the case as a defendant in a form of a decision issued at the hearing also where such notice may be issued ex officio82.

It should be borne in mind that according to the provisions of Art. 391 § 1 KPC, the provisions of Art. 477 KPC do not apply in a procedure before the court of appeal or in a procedure before the Supreme Court.

§ 5. Court jurisdiction in labour law matters

M. Wujczyk

5.1. Ratione materiae jurisdiction in labour law mattersThe ratione materiae jurisdiction in labour law matters is determined in ac-

cordance with the general rules (Art. 16 – 18 KPC)83. Under Art. 461 § 11 KPC the exception has been made as regards specific types of matters which, regardless of the value of the matter at issue, should be heard by a district court. First, a dis-trict court is competent in labour law matters in which a declaratory judgment is sought to determine existence of an employment relationship and in matters in which voidance of termination of an employment relationship, reinstatement and restoration of the previous wage or working conditions and the related claims (pursued jointly) are sought. The „jointly pursued” claims should be understood to mean any labour law claims, regardless of whether they are directly or even in-directly connected with the matters mentioned above. For example, a court com-

80 See: M. Manowska, Postępowanie odrębne… [Separate procedure…], p. 98. 81 See a judgment of the Supreme Court of 10.11.1999, I PKN 351/99, OSNAPiUS 2001, No. 6,

item 199; a judgment of the Supreme Court of 13.9.2006, II PK 357/05, OSNP 2007, No. 17–18, item 247.

82 See a resolution of the Supreme Court of 7.1.2010, II PZP 13/09, OSNP 2010, No. 13–14, item 155.

83 See: W. Siedlecki, Z. Świeboda, Postępowanie cywilne... [Civil procedure…], p. 80.

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petent to hear a case of a person who brings a declaratory action to determine the existence of an employment relationship and at the same time claims pay-ment of a bonus, will be a district court even if the value of the amounts sought exceeds PLN 75000. If the claim to determine the existence of an employment relationship was pursued separately from the claim for payment of bonus, then such claims would need to be handled separately: the former by a district court (sąd rejonowy) and the latter by a regional court (sąd okręgowy).

In the event of change of a statement of claim such that the plaintiff, apart from his original claim for compensation for unlawful termination of a contract of employment without notice (in which case a district court is a competent court regardless of the value of the matter at issue (Art. 461 § 11 KPC)), brings another claim for severance payment, the district court will refer such new claim to be heard by a regional court only if the value of the matter at issue in the new case exceeds PLN 75000 (Art. 16 and Art. 17 (4) KPC in connection with Art. 193 § 1 and 2 KPC)84.

Second, regardless of the value of the matter at issue, the district courts have jurisdiction in matters concerning compensation for unjustified or unlawful ter-mination of an employment relationship.

Third, a district court is competent in matters regarding penalties for breach of order in the workplace (kary porządkowe), certificates of employment (świadectwa pracy) and the related claims. Also in this case the value of the „joint-ly pursued claims” does not influence the ratione materiae jurisdiction of the court. Such claims must be in relation to the matters concerning penalties for breach of order in the workplace or certificate of employment. By reference to a case-law relating to Art. 476 KPC, it can be pointed out that the related claims are claims the existence of which is dependent on the existence of penalties for breach of order in the workplace or of a certificate of employment.

A claim relating to a matter concerning a certificate of employment is em-ployee’s demand to rectify an employment and earnings certificate (zaświadczenie o zatrudnieniu i wynagrodzeniu)85.

5.2. Ratione loci jurisdiction in labour law mattersIn the labour law matters the legislature decided to make it easier for a plain-

tiff to bring an action and established a principle of alternative jurisdiction (właściwość przemienna). Parties in dispute may bring an action according to:– a general jurisdiction defined in Art. 27 – 30 KPC,

84 See a judgment of the Supreme Court of 11.1.2008, I PK 167/07, OSNP 2009, No. 5–6, item 59.85 See a resolution of the Supreme Court of 17.2.2005, II PZP 1/05, OSNP 2005, No. 10, item 138.


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– a place of performance of work,– a location of the establishment.

First, it should be noted that the right to refer to the alternative jurisdiction specified in Art. 461 § 1 KPC may be exercised both by the employee and the employer. The mentioned provision does not confer such right on one party to an employment relationship only.

The right to bring an action in accordance with the general jurisdiction means that an employee who brings such action against an employer may do it within the area where the employer has its registered seat or, if the employer is a natural person, a place of residence. On the other hand, a place of residence of an employee will be the basis for determination of the general jurisdiction when the action is brought by the employer.

In labour law matters an action may be brought before a court at the place where the work is, was or was supposed to be performed. In fact, this means that the jurisdiction depends on the place of performance of work. A place of perfor-mance of work is one of the key elements of a contract of employment, mutually agreed, which cannot be changed unilaterally by any of the parties to the con-tract. The parties entering into a contract of employment have a wide discretion to specify the place of work. It may be a permanent or a variable place, however, in that latter case the variability of the place of work may result from the nature (type) of the work. Generally the term workplace is understood either as a fixed point, in geographical sense, or as a certain specified area, zone defined by the boundaries of a geographical unit of the country or in other sufficiently clear manner, where the work is to be performed86. As a rule, the place of performance of work should be specified in the contract. However, it is possible that a con-tractual provision will be different from the actual place of performance of work. In such event, to establish the ratione loci jurisdiction, what should be taken into account is not the place specified in the contract but the area where the work has actually been performed. If an employee performs his obligations across a vast area falling within the areas of competence of several different courts, the parties to an employment relationship will be entitled to select any of these courts as the place where the action is brought.

It is unclear what the legislature means by the term „work establishment” (zakład pracy) as a determinant of the ratione loci jurisdiction. There are various opinions presented in this regard. There are views according to which a work es-tablishment should be identified with the seat of the employer employing a work-er87, as well as the views according to which it means a named establishment at

86 See a judgment of the Supreme Court of 1.4.1984, I PR 19/85, OSPiKA 1986, No. 3, item 46.87 See a decision of the Supreme Court of 31.8.1979 , IV PZ 50/79, OSNC 1980, No. 3, item 56.

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which the worker is or was employed88. The former view is supported by a his-toric interpretation; before the amendment of the Labour Code the concept of an establishment was the same as the currently used term „employer”. However, it should not be overlooked that the legislature, by replacing in the Labour Code the term „work establishment” with the term „employer” has not decided to make such amendment in the mentioned Art. 461 § 1 KPC. Based on the assumption of the reasonable legislature, this should be considered intentional89. This leads to a conclusion that an establishment should be understood to mean a unit in which a worker performs work and not a seat of the employer (even if in specific circumstances both may be one and the same place). It does not imply employ-ment of the worker by the work establishment concerned. It cannot be excluded that the establishment may only be a place of performance of work (for example a branch or a subsidiary which is not a separate employer) while the employment relationship is established between the worker and a company. Reference should also be made to mobile workers who often perform work in a location which is completely different from the work establishment with which they cooperate (for example, a worker who performs work in the region of Nowy Sącz sends reports and receives orders from a company branch seated in Cracow). In such event, under Art. 461 § 1 KPC, the worker may bring an action both at the place of per-formance of work and in the region of the court where the establishment coop-erating with the worker is located. If there are several such establishments (for example in relation to workers who perform work throughout Poland), I think that an action can be brought before any court in the district where at least one work establishment cooperating with the worker is located.

I do not share a view presented in the literature according to which a regula-tion of the method of specification of the ratione loci jurisdiction is exhaustive and thus excludes any other jurisdiction according to the provisions on ordinary proceedings, including the possibility of previous contractual modification of the court jurisdiction under Art. 46 KPC90. It cannot be considered that the ratione loci jurisdiction defined in Art. 461 § 1 KPC is an exclusive jurisdiction and that the arrangements between the parties to an employment relationship regarding selection of a court competent to hear the disputes arising between them will be invalid91. However, worth noting is a view presented in the jurisprudence accord-ing to which a provision included in a contract of employment between the em-ployee and the employer which modifies the ratione loci jurisdiction to the detri-

88 See a decision of the Supreme Court of 21.4.1970, I PZ 17/70, OSNC 1970, No. 11, item 213.89 See a decision of the Court of Appeal in Katowice of 9.10.1996, III APz 13/96, OSA 1998,

No. 10, item 38.90 See: M. Manowska, Postępowanie odrębne… [Separate procedure…], p. 78.91 See similar: T. Stręk, Indywidualne… [Individual…], p. 167.


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ment of the employee will be invalid under Art. 18 § 2 KP92. Such opinion seems too far-reaching since it is difficult to consider that the provisions governing the ratione loci jurisdiction in labour law matters are „labour laws”.

5.3. Transfer of the case to another court for teleological reasons

In a situation where:1) both parties to the proceedings submit a joint request and2) there exist teleological reasons in support of the transfer of the case,a competent court may transfer the case to be heard by another equivalent court (Art. 461 § 3 KPC). The transfer is admissible no matter which of the parties, the employee or the employer, is the plaintiff or of the defendant. However, it is nec-essary that both parties agree to that. Contrary to the opinion presented in the jurisprudence, this does not mean that such change must be of mutual interest93. It is not a condition to be examined by the court upon taking a decision on the transfer of the case. However, the competent court should verify whether such transfer is purposeful. This should be evaluated by the court. However, the court should undoubtedly take into account the speed of the procedure and facilitation of taking the evidence. For example, the transfer may be considered purposeful if the majority of witnesses live far from the seat of the competent court94 or it is difficult for one of the parties to appear before the court (for example because of illness)95.

The decision on the transfer of the case may be issued at a closed meeting.An opinion which should be considered right and proper is that Art. 461 § 3

KPC read together with Art. 200 § 2 KPC points out that the court to whom the case has been transferred is bound by the decision of the transferring court and

92 See: M. Mędrala, Funkcja ochronna… [The protective function…], p. 217.93 See: J. Brol, [in:] K. Piasecki (ed.), Kodeks postępowania cywilnego. Komentarz [Code of Civil

Procedure. Commentary], vol. I, Warsaw 2010, p. 397.94 See: K.W. Baran, Procesowe… [Procedural…], p. 253.95 There has been an opinion presented in jurisprudence that the „teleological reasons” should

be understood to mean also the situations where such transfer satisfies a certain general (public) interest (see: J. Gudowski, [in:] T. Ereciński (ed.), Kodeks postępowania cywilnego [Code of Civil Procedure], vol. I, Warsaw 2007, p. 395. However, that view was criticised (see: M. Malczyk-Hredzina, R. Flejszar, Pojęcia „sądu właściwego” i „organu właściwego” na gruncie przepisów k.p.c. normujących postępowanie odrębne w sprawach z zakresu prawa pracy i ubezpieczeń społecznych [The concept of „competent court” and „competent body” under the provisions of the Code of Civil Procedure governing separate proceedings in labour law matters and social insurance matters], Studia z zakresu prawa pracy i polityki społecznej 2011, p. 428.

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cannot return the case or transfer it to another court96. It applies also to a situa-tion where a decision on the transfer of the case has been made in breach of the conditions laid down in Art. 461 § 3 KPC97.

In the separate proceedings in labour law matters also the general provisions of Art. 43–45 KPC will apply.

§ 6. Court’s assistance to the parties in labour law matters

D. Książek

Each judge in the civil procedure, therefore also a judge of a labour court is, as tertius, bound by the principle of impartiality, neutrality as well as the adversarial principle (audi alteram partem) coded in the formula: ei incumbit probatio, qui dicit, non qui negat. The purpose of this principle is the full implementation of the general formula: audiatur et altera pars (listen to the other side). However, these principles are not absolute, in particular taking into account that it is not possi-ble to find objective criteria for determination of the state of procedural balance. Therefore, de lege lata, certain exceptions which implement the postulates of hu-manization of the civil procedure are acceptable98. In principio, a reference should be made to a general standard laid down in Art. 5 KPC99 according to which a court may, if reasonably necessary, give the parties and participants in the pro-ceedings acting without a lawyer, the necessary instructions as to the procedural steps. A specific example of this are provisions of Art. 136 § 2 second sentence of the Code of Civil Procedure which provides that a court should inform the party of the obligation to notify the court of each change of the address of residence by the party and the consequences of failure to make such notification and Art. 212 § 2 KPC which provides that the court, if necessary, may give the parties appro-priate instructions and point out the advisability of appointment of representa-tive for litigation. The same applies in the case of Art. 327 KPC which provides

96 See a resolution of the Supreme Court of 26.1.2012, III CZP 86/11, Biuletyn SN 2012, No. 1.97 See a judgment of the Supreme Court of 19.8.1977, I PZP 33/77, OSNCP 1978, No. 1, item 12.98 P. Osowy, Aktywność informacyjna sądu a ustawowe granice pomocy stronie – rozważania

na tle art. 5 KPC [The information activity of a court and the statutory limits of assistance provided to a party in the context of Art. 5 KPC], Rejent 2003, No. 7–8, p. 107 and 112 and the literature ref-erenced there.

99 Ibidem, p. 107.


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that a party who is present during announcement of a judgment and who is not represented by a lawyer or a party who was not present during announcement of a judgment as a result of deprivation of liberty, should be instructed as to the pro-cedure and deadlines for lodging an appeal and in the case of Art. 357 § 2 KPC which provides that a party not represented by a lawyer should be advised of the right to appeal against a decision of the court as well as the deadline and proce-dure for lodging such appeal.

Par excellence, the provisions of Art. 5 KPC are supplemented by Art. 477 sec-ond sentence KPC, which strictly applies to the proceedings in labour law mat-ters. It provides that an employee should be advised of the claims arising from the facts he has invoked. It is rightly pointed out in the literature100 that these two provisions have similar structure but are not identical. One of their com-mon characteristics is that they both use vague expressions, general clauses101, which undoubtedly is a source of many problems both in the case-law and juris-prudence102, and therefore, for dogmatic and pragmatic reasons, I should ana-lyze them in more detail.

The standard laid down in Art. 5 KPC is an attempt to synchronize two key directives of the civil procedure, namely vigilantibus iura sunt scripta and igno-rantia iuris nocet103, which have evolved significantly over time. It does not elim-inate from the Polish civil procedure the ignorantia iuris nocet principle which is par excellence the evidence of a fiction of general knowledge of law assumed in the legal logic, the purpose of which is „merely” to mitigate the effects of the ignorance, in particular through a moderate formalism formula104 which plays a specific role in the proceedings in labour law matters. Therefore, the directive stipulated in Art. 5 KPC should be understood as a guarantee of the procedural rights granted to the parties and their alignment to the higher level, and on the other hand it is a specific remedy for inertia and negligence resulting from that ignorance105.

Literally, the addressee of the directive laid down in Art. 5 KPC is court. How-ever, it is rightly pointed out in the literature that the obligation to inform the party is imposed not only on a court in a strict sense, but also on a court enforce-

100 D. Duda, Sądowe pouczenie pracownika o roszczeniach wynikających z przytoczonych przez niego faktów (art. 477 zd. 2 KPC) [Advising an employee of the claims arising from the invoked facts (Art. 477 second sentence of the Code of Civil Procedure)], PiZS 2005, No. 7, p. 19.

101 K.W. Baran, Procesowe… [Procedural…], p. 254; T. Zieliński, Klauzule… [General…], p. 67 ff.102 D. Duda, Sądowe… [Advising…], p. 19.103 P. Osowy, Aktywność… [The information…], p. 115.104 M.M. Cieśliński, W kwestii stosowania art. 5 KPC [Commentary on the application of Art. 5

KPC], PS 1999, No. 4, p. 104. 105 P. Osowy, Aktywność… [The information…], p. 116.

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ment officer (komornik)106. This is based on the argumentum a rubrica. But the court’s assistance itself107 as stipulated in Art. 5 KPC is addressed explicitly to the parties and participants in the proceedings not represented by a lawyer (adwokat or radca prawny). Therefore, it may be argued that the legislature, among others under Art. 5 KPC, makes a specific partition of representatives based on the cri-terion of their professional qualifications. On one hand, there is a group to which the principle vigilantibus iura sunt scripta and ignorantia iuris nocet is applied in extenso (professional lawyers – adwokat, radca prawny) and there is a group, such as labour inspectors or representatives of trade unions, in relation to which there is derogation from the above principles.

Prima facie, since the amendment of 2.7.2004108, classification of Art. 5 KPC as an optional provision does not seem controversial109. I think that if objective conditions are met, namely a reasonable need and absence of a professional rep-resentative, the court should provide a person concerned (party or participant) with respective advice in accordance with the provisions of Art. 5 KPC. The ap-plication of the norm included in Art. 5 KPC should be divided into two stages. First is the assessment by the court whether the two previously mentioned condi-tions are met, in concreto. If such assessment is positive, the court must provide advice under Art. 5 KPC which advice is the second phase of application of that provision. The Supreme Court explicitly held that this provision implies an obli-gation of the court to provide a party with necessary instructions in justified cases that is where a party, because of its helplessness, mental impairment, the com-plexity of the case, ignorance of the rules of procedure, is unable to understand the meaning of the conducted proceedings and therefore to undertake appropri-ate procedural steps110. Implicite it follows also from another opinion presented by the Supreme Court according to which the court’s discretion in respect of giv-ing instructions (advising) under Art. 5 KPC cannot be arbitrary but should be objective and dictated by the circumstances111.

106 D. Duda, Sądowe… [Advising…], p. 20; W. Sługiewicz, Glosa do wyroku SN z 17.1.1997 [Com-mentary to a judgment of the Supreme Court of 17.1.1997], II CKN 61/96, PS 1999, No. 1, p. 120.

107 In the literature it is pointed out that the expression „court’s assistance to a party to the pro-ceedings” is incorrect as to the merits and semantics. P. Osowy, Aktywność… [The information…], p. 118 and an opinion of J. Mokry referenced there. In my opinion there are no sufficient grounds to support such argument and it seems it is a consequence of a definition of that concept adopted by the authors.

108 Journal of Laws [Dz.U.] No. 172, item 1804.109 T. Liszcz, Kontradyktoryjne postępowanie sądowe w sporach pracowniczych po zmianie k.p.c.

[Adversarial court proceedings in employment disputes after the amendment of the Code of Civil Proce-dure], PiZS 2005, No 3, p. 21 and M. Mędrala,Funkcja ochronna… [The protective function…], p. 226 ff.

110 Judgment of the Supreme Court of 26.7.2011, I UK 6/11, Legalis.111 Decision of the Supreme Court of 19.4.2005, I UK 333/04, Legalis.


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Not only the nature of such advice but also its scope is of significant impor-tance. Article 5 KPC, both in the present wording and in the wording from be-fore the amendment of 2004, does not impose and has not imposed on a court an obligation to provide a party not represented by a professional representative with detailed advice regarding all possible actions of such party but only to give instructions significant in concreto in terms of the proper course of the proceed-ings and of the guarantee of the party’s right of defence. The court is not sup-posed to replace the parties or one of them in the proceedings since the parties themselves are obligated to actively participate in the proceedings, including to submit evidence (Art. 3 KPC, Art. 217 § 1 KPC, Art. 232 KPC). The obligation to give instructions regarding procedural steps of the parties and the legal con-sequences of such steps cannot be understood to mean an obligation to replace their initiative in respect of evidence112. Unlike Art. 477 KPC, the instructions and advice mentioned in the above provision should only be such to allow avoid-ance by the party of negative consequences in the case of failure to take certain procedural steps113. However, this cannot be identified with the obligation to give instructions in a situation where this is not necessary for the protection of procedural rights. It applies in particular to a conduct of a party in undertaking actions which are easily understandable to a lay person114. Finally, the question to be asked is not whether such instructions are optional or obligatory, but what is their scope. The directive included in Art. 5 KPC may be called an objective obligation which means that if there is an objective need to instruct a party, the court should give such instructions. The subject-matter of the directive in Art. 5 KPC is instructing the parties and participants in the proceedings who act with-out a lawyer. The absence of a professional representative is a necessary but not an independent condition115. This means that the „objective need” for the assis-tance in question must also be met.

Violation of Art. 5 KPC does not result in invalidity of the proceedings, how-ever, it may constitute a defect affecting the outcome of the case116. In concreto, a party raising such plea must specify, in the reasons of the complaint, specific procedural steps which could have been taken but were not taken because the party was not duly instructed117.

112 Decision of the Supreme Court of 27.9.2005, I UK 96/05, Legalis.113 Decision of the Supreme Court of 19.4.2005, I UK 333/04, Legalis.114 Judgment of the Supreme Court of 4.4.2012, III UK 80/11, Legalis.115 Decision of the Supreme Court of 15.9.2011, II CZ 53/11, OSNC, Zb. dodatkowy 2012, No. D,

item 74, p. 37.116 Decision of the Supreme Court of 8.11.2007, III CZ 45/07, Legalis.117 Decision of the Supreme Court of 28.5.2008, I UK 30/08, Legalis.

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As I have already mentioned, the provisions of Art. 5 KPC are par excellence supplemented by Art. 477 second sentence of the Code of Civil Procedure. In that provision the legislature „provided” the presiding judge with the obligation to instruct an employee of the claims arising out of the facts invoked by the latter. Apart from numerous common features, there are also many differences between these two provisions. Unlike the norm laid down in Art. 5 KPC, the instruction (advice) stipulated in Art. 477 second sentence KPC is explicite a substantive pro-vision and its personal scope is not limited only to the parties not represented by a professional representative. On one hand, in Art. 477 (2) KPC the legisla-ture did not limit, explicite, its scope ratione materiae, for example to „some” cat-egory of claims to which the instructions refer. On the other hand, such claims must follow from the facts invoked by the employee; this is expressly stipulated in the second sentence of Art. 477 KPC. Implicite, the limits of the instruction are, in concreto, the limits of the facts118. In temporal terms, taking into account the directive stipulated in Art. 383 first sentence KPC which prohibits extension in the appellate procedure of the statement of claim and raising new claims, a party should be instructed in accordance with Art. 477 KPC in the proceedings con-ducted in the first instance already before commencement of the evidentiary pro-cedure. However, the burden of proof regarding the claims in respect of which an employee received instructions should lie with the employee. The instruction may in concreto be given orally or in writing and should be entered in the min-utes of the hearing. In the absence of such information, each of the parties has the right to file a request under Art. 160 KPC for supplementing the contents of the minutes119. A positive point is a de lege ferenda postulate raised in the litera-ture on the subject120 to limit the scope ratione personae of Art. 477 second sen-tence KPC to include only the employees without a professional representative which would undoubtedly lead to a greater coherence with the norm stipulated in Art. 5 KPC.

118 M. Mędrala, Funkcja ochronna… [The protective function...], p. 227.119 D. Duda, Sądowe pouczenie pracownika o roszczeniach wynikających z przytoczonych przez

niego faktów (art. 477 zdanie drugie k.p.c.) [Advising an employee of the claims arising from the invoked facts (article 477 second sentence of the Code of Civil Procedure)] PiZS 2005, No. 7, p. 19.

120 M. Mędrala, Funkcja ochronna… [The protective function...], p. 229.


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§ 7. Costs of judicial proceedings in labour law matters

D. Książek

A relative rule of full exemption from court fees in labour law matters121, de lege lata, is obsolete. One of the major causes is derogation of provisions of Art. 463 KPC and Art. 263 KP122, which undoubtedly was a consequence of change of „free of charge” axiology in the civil proceedings in labour matters.

The rules and the procedure for collection of court fees in civil matters123, re-imbursement of the costs, amounts of court fees in civil matters, rules for exemp-tion from court costs, remission of costs, payment of the costs in installments and deferral of payment of court fees are laid down in the Act on court fees in civil matters (ustawa o kosztach sądowych w sprawach cywilnych)124, further called the Act on court fees. The court fees include fees and expenses which must be paid by a party who files with a court a pleading which is subject to such fee or expenses (Art. 2 and 3 of the Act on court fees).

In analysing the scope of exemption from court fees in labour law matters, a reference should be made to Art. 96 (1)(4) of the Act on court fees. Under that provision an employee who brings an action is not obligated to pay court fees without prejudice to the provisions of Art. 35 of that act. According to the latter provision, in labour law matters a basic fee amounting to PLN 30 is collected on appeal, complaint (grievance), cassation appeal and action for annulment of a val-id ruling. In matters where the value of the matter at issue exceeds PLN 50 000, a proportional fee is collected on all pleadings which are subject to such fee. An employee and an employer must pay a basic fee in respect of the pleadings men-tio ned above also in a declaratory action to determine existence of an employ-ment relationship brought by a labour inspector.

I think that the above regulations are coherent. Article 96 (1) (4) of the Act on court fees is a specific provision specifying a closed group of persons (it ap-plies not only to employees but also to the insured persons). However, the leg-islature clearly provided that this provision does not modify the provisions of Art. 35. In my opinion a possible interpretation is that in the absence of the clause

121 K.W. Baran, Procesowe… [Procedural…], p. 256.122 M. Mędrala, Funkcja ochronna… [The protective function...], p. 306.123 See a comparative study on court fees in: J. Brol, M. Safjan, Koszty sądowe w sprawach cywil-

nych [Court fees in civil matters], Warsaw 1994, passim.124 Article 1 of the Act on court fees of 28.7.2008 (Journal of Laws [Dz.U.], No. 167, item 1398),

consolidated text of 27.4.2010 (Journal of Laws [Dz.U.], No. 90, item 594).

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on non-violation of Art. 35125, Art. 96 (1)(4) would be a specific provision in re-lation to the generality of Art. 35 in extenso (because of overlapping scopes of regulation). Therefore, Art. 96 (1)(4) is a specific provision to Art. 35 of the Act on court fees only to the extent that such scope has not been expressly limited. Therefore, it may be accepted that a general rule is established in Art. 35 because of a broader personal scope, making reference not only to an employee but also to an employer and a labour inspector. The personal scope of Art. 96 (1)(4) is limit-ed to an employee or an insured, thus only a part of the scope of Art. 35. Because of the subject-matter of the regulation, the relationship of specificity-generality of those provisions may be reversed because of a broader scope of regulation of Art. 96 (1)(4) of the Act on court fees, however, only in relation to one actor that is an employee or a party. Such wording of these provisions does not facilitate de-coding the relationship between them126.

Without referring to a broader theoretical aspect, the focus should be placed on the scope of regulation of both of these provisions. As I noted earlier, de lege lata Art. 35 regulates the amounts of fees in labour law matters. Implicite, it ap-plies both to the actions brought by an employee and an employer. The concep-tual scope of the expression „labour law matter” used in Art. 35 is identical with the scope defined in Art. 476 § 1 KPC. A similar concept has been adopted in re-lation to a definition of an employee and an employer. In extenso, the provisions of Art. 2 and 3 KP should be applied by reference. It is worth noting that the ref-erences mentioned above are universal within the act on court fees what follows explicitly from Art. 8 of the Act on court fees. Article 35 of the Act contains a nu-merus clausus of pleadings to which it applies. The fee amounting to 30 PLN is collected on the appeal, complaint (grievance), cassation appeal and action for annulment. Exemption from fees other than those mentioned in the preceding sentence applies, in principle, to an employee since only an employee is, ex lege, exempt from costs. An employer may benefit from the exemption from court fees only under a decision of a court or a court referendary (Art. 102 and 103) or a personal exemption under Art. 94 of the Act on court fees127.

In actions brought by an employee a basic fee referred to in Art. 35 and amounting to PLN 30 on the pleadings mentioned in that provision is collected from the employee and the employer. A differentiation of the situation of the par-ties in this regard, and more specifically a differentiation of the amount, is unjus-tified. Therefore, an opinion according to which only an employee may benefit

125 There was an opposite view presented in the literature according to which the scopes of these provisions do not overlap; see: K. Gonera, Komentarz… [Commentary…], p. 225–226.

126 See A. Górski, L. Walentynowicz, Koszty sądowe w sprawach cywilnych [Court fees in civil matters], Warsaw 2008, p. 52.

127 K. Gonera, Komentarz… [Commentary…], p. 229.


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from the „privilege” of the basic fee while the employer should pay proportional fees in accordance with Art. 3 (2), is unjustified. It should be emphasized that the above principle applies only to a numerus clausus of pleadings listed in Art. 35 of the Act on court fees. A contrario, as regards the pleadings not mentioned in that provision, the general rules will apply, namely a fixed fee (opłata stała) (Art. 12) or a proportional fee (opłata stosunkowa) (Art. 13 of the Act on costs)128.

The situation is different where the value of the matter at issue exceeds PLN 50 000. According to Art. 35, a proportional fee is collected in respect of all plead-ings, at the rate of 5% of the value of the matter at issue. Based on the lege non distinguente principle, this applies both to an employee and an employer129. Therefore, the view presented in the case-law according to which an appeal of a defendant employer in a labour law matter in which the value of the matter at issue does not exceed PLN 50 000 should be subject to a basic fee amounting to PLN 30 (Art. 35 (1)) should be considered right and proper130. In concreto, it may be difficult to determine the value of the matter at issue that is a factor which au-tomatically implies the costs of the proceedings concerned. For example, in the event where an employee who may benefit from two alternative claims stipulated in Art. 45 § 1 KP decides to pursue a non-pecuniary claim for avoidance of termi-nation of a contract of employment (for reinstatement) instead of a claim for com-pensation (pecuniary claim), the value of the matter at issue (and thus the value of the subject of appeal or a cassation appeal) will be the value calculated in accord-ance with Art. 23¹ KPC, and not the monetary amount specified in a statement of claim (Art. 19 § 1 KPC)131. On the other hand, in a situation where the plaintiff, in one statement of claim, demands both reinstatement and compensation for the period of unemployment, in calculating the value of the matter at issue the values of both of these claims should be added (Art. 21 KPC)132 except in the case of al-ternative claims133. Worth noting is the principle according to which the rules for payment of fees will not change in a situation where a plaintiff withdraws a part of the claim to an amount below PLN 50 000 including a waiver of claim134.

In analysing the scope of regulation of Art. 35 a reference should be made also to Art. 3 of the Act on court fees. It provides for the requirement to collect a fee

128 Ibidem, p. 230.129 See for example: A. Zieliński, Koszty sądowe w sprawach cywilnych [Court fees in civil mat-

ters], Warsaw 2007, p. 179.130 Resolution of the Supreme Court of 9.1.2009, II PZP 5/06, OSNP 2007, No. 11–12, item 152,

p. 452.131 Decision of the Supreme Court of 15.6.2012, I PZ 4/12, Legalis.132 Decision of the Supreme Court of 6.3.2009, I PZ 1/09, Legalis.133 Decision of the Supreme Court of 28.10.2008, I PZ 25/08, OSNP 2010, No. 5–6, item 70.134 Decision of the Supreme Court of 13.1.2009, I PZ 35/08, Legalis. See also a resolution of the

Supreme Court of 5.12.2007, II PZP 6/07, OSNP 2008, No. 7–8, item 89.

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in respect of a statement of claim (opłata od pozwu) (Art. 3 (2)(1) of the Act on costs) and to pay a processing fee (opłata kancelaryjna) (Art. 3 (3)) where the lat-ter should be understood to mean an application fee for the issuance of a: certi-fied copy, abstract, certificate, extract, other document or a photocopy. In labour law matters only an employee is exempt, under Art. 96 (1)(4) of the Act on court fees, also from fees mentioned in the preceding sentence. Such exemption is not applicable to the employer and to the employee sued by the employer.

Moving on to the provisions of Art. 96 (1)(4) of the Act on court fees, it must be said, apart from the issues raised in relation to Art. 35 and 3 of Act on court fees, that the exemption is complete in the sense that it refers both to fees and expenses. However, it is a partial exemption in relation to fees which follows ex-plicitly from the provisions of Art. 35 of the Act on court fees and in relation to expenses since it applies to one party only, namely an employee. Moreover, as re-gards the expenses, the exemption is temporary as the expenses are temporarily borne by the State Treasury as laid down explicitly in Art. 97 of the Act on court fees135. There was an opinion presented in the literature according to which ex-emption of an employee from costs under Art. 96 (1)(4) of the Act on court fees applies also in enforcement procedure136 and bankruptcy procedure137.

In analysing the court fees in labour law matters a reference should be made also to the regulations regarding other actors in a dispute. Such regulations in-clude Art. 96 (1)(5) applicable to a curator ad litem, Art. 96 (1)(6) applicable to a public prosecutor and an Ombudsman, Art. 62 KPC in connection with Art. 96 (1)(6) of the Act on court fees applicable to social organisations, Art. 96 (1)(8) applicable to a labour inspector and trade unions. The exemption of the above-mentioned entities from costs is an in extenso exemption138. Worth noting is Art. 35 (2) of the Act on court fees according to which an employee and an em-ployer shall pay a basic fee in respect of pleadings which are subject to the fee and listed in paragraph 1 of that article also in a declaratory action to determine exist-ence of an employment relationship brought by a labour inspector. Implicite, the fiscal threshold which is the value of the matter at issue referred to in Art. 35 (1) second sentence of the Act on court fees does not apply to an employee or an em-ployer. Undoubtedly, it is very helpful in terms of initiation of a dispute by the mentioned entity.

135 See A. Górski, L. Walentynowicz, Koszty sądowe… [Court fees…], p. 123. 136 J. Stasiak, Zwolnienie od kosztów sądowych [Exemption from court fees], Warsaw 2010, p. 62

and K. Gonera, Komentarz… [Commentary...], p. 173.137 Z. Miczek, Koszty sądowe w sprawach z zakresu prawa pracy i ubezpieczeń społecznych [Court

fees in labour law matters and in social insurance matters], PiZS 2006, No. 7, p. 30.138 See a detailed analysis in: M. Mędrala, Funkcja ochronna… [The protective function...], p. 317.


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The losing party must reimburse the opposite party, upon demand of the lat-ter, for the costs necessary for the appropriate enforcement of rights and appro-priate defence (costs of litigation). One of the necessary elements of costs of the litigation conducted by a party personally or through a representative who is not a lawyer or a patent agent, are court fees incurred by that party (Art. 98 KPC).

According to Art. 108 KPC, the court should resolve on the costs in each rul-ing which brings the case to an end in the given instance. In concreto, the court may only resolve on the rules according to which the parties should bear the costs of the litigation, and leave to the referendary the preparation of detailed calcu-lation. In such situation, after the judegment which has the force of res iudicata become valid and final, the court referendary in the court of the first instance will issue a decision including a detailed calculation of costs to be borne by the parties. In the case of the proceedings in the second instance, the court repealing the contested decision and remanding the case to the court of the first instance, will leave it up to the latter court to resolve on the costs of the appeal proceed-ings. If in the course of the proceedings the court does not rule on the obligation to bear court costs or does not include the entire amount payable in this respect in the ruling, a respective decision should be issued in camera by a court before which the case was tried in the first instance (Art. 108¹ KPC). The party who wishes to recover the costs should, not later than by the end of the hearing im-mediately preceding issuance of a ruling, submit to the court a list of costs or file a request for award of costs in accordance with applicable laws. If a party fails to perform the above, the claim will expire. The situation is different as regards the costs payable to a party not represented by a lawyer. In such case the court will rule on the costs ex officio (Art. 109 § 1 KPC).

§ 8. Preliminary inquiries (czynności wyjaśniające) in labour law matters

M. Wujczyk

The preliminary inquiries (czynności wyjaśniające) regulated in Art. 468 KPC139 are an initial phase of the proceedings in labour law matters. Their pur-pose is to accelerate the procedure and make it less formal and to prepare the

139 See: J. Iwulski, Komentarz do Kodeksu postępowania cywilnego [Commentary to the Code of Civil Procedure], commentary to Art. 468, Lex/el. 2017.

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court hearing so that the case can be resolved as soon as possible. The prelimi-nary inquiries should be carried out if this is justified on the basis of the results of initial examination of the case concerned or where other circumstances speci-fied in law occur.

8.1. The necessity to conduct preliminary inquiriesThe preliminary inquiries are optional. However, it is reasonable to support

an opinion according to which those activities are relatively obligatory. It is em-phasized that a court cannot refrain from conducting the preliminary inquiry if the circumstances specified in the Code of Civil Procedure have not occurred. Such interpretation is supported by the expression used by the legislature, name-ly „the court shall undertake the preliminary inquiries”. However, a certain ele-ment of relativity has been introduced which allows the court to omit this stage of the proceedings. Namely, some of the conditions laid down in Art. 468 § 1 KPC which allow refraining from the preliminary inquiries in question are expressed in very general terms. Therefore, a court may decide to carry out the preliminary inquiries, depending on the circumstances of the case concerned140.

8.2. Decision to carry out the preliminary inquiriesThe majority of legal scholars and the court pragmatics indicate that a deci-

sion on scheduling a court session to carry out the preliminary inquiries is taken by the chairman of the court department (authorised judge) in a form of an order (zarządzenie)141. However, there is also another opinion according to which the entity competent to decide on the preliminary inquiries is a court142.

The preliminary inquiries are carried out in open court sitting (posiedzenie), which is not a hearing (rozprawa), by a professional judge. It is not attended by lay judges.

8.3. The purpose of the preliminary inquiriesThe purpose of the preliminary inquiries is to:

– remove the formal defects of pleadings, and in particular to specify more precisely the demands raised,

140 K.W. Baran, Procesowe… [Procedural…], p. 258.141 See: P. Talaga, [in:] A. Jakubecki (ed.), Kodeks postępowania cywilnego. Komentarz [Code of

Civil Procedure. Commentary], Warsaw 2010, p. 558.142 Judgment of the Supreme Court of 21.4.1998, II UKN 4/98, OSNP 1999, No. 7, item 252.


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– clarify the standpoints of the parties and induce them to reconcile and enter into a settlement,

– determine which of the circumstances relevant for resolution of the case con-cerned are disputable between the parties and whether and what evidence should be taken to clarify the contentious issues,

– clarify other circumstances which are important for proper and fast resolution of the case concerned.The list of purposes of the preliminary inquiries limits the number of cases

in which such inquiries should be undertaken. In other words, the preliminary inquiries should not be carried out for the achievement of purposes other than those listed in Art. 468 § 2 KPC.

In should also be kept in mind that the preliminary inquiries should acceler-ate the proceedings in labour law matters. In this sense, it may be considered an excessive formalism where a district court schedules an inquiry hearing in order to determnine whether the parties are not to enter into a settlement in a situa-tion where the claim has been formulated in a sufficiently clear manner and it is only necessary to complement the evidence. This is because decisions concerning evidence may be issued during in camera sitting (Art. 468 § 2 KPC) and a settle-ment can be concluded at a hearing143. If the parties conclude a settlement agree-ment in a labour law matter at the sitting scheduled to carry out the preliminary inquiries, a judge carrying out the inquiry without participation of lay judges is competent – upon establishing that conclusion of the settlement, taking into ac-count its contents, is acceptable – to issue during such sitting a decision on dis-continuance of the proceedings144. It has been pointed out in the literature that given the specific obligation to encourage the parties to reconcile and enter into a settlement agreement in the course of the preliminary inquiries, a decision on referral of a case to mediation should be exceptional (Art. 1838 § 1 KPC). At the same time it is pointed out that significantly important is the standpoint of the parties who may claim that it would be easier for them to reach a compromise before the out-of-court mediator. In such case the court should transfer the case to an out-of-court mediation procedure145.

The wording of Art. 468 § 2 KPC indicates that the subject-matter of the preliminary inquiries are not only actions undertaken to remedy formal defects but also actions undertaken at the hearing. For example, these include proce-dural steps referred to in Art. 212 KPC (establishment of uncontested facts) and

143 M. Manowska, Postępowanie odrębne… [Seperate procedure…], p. 92.144 Decision of the Supreme Court of 27.1.1987, I PRN 66/86, OSNAPiUS 1988, No. 4, item 50.145 K.W. Baran, Mediacja w sprawach z zakresu prawa pracy [Mediation in labour law matters],

PiZS 2006, No. 3, p. 2–6.

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Art. 223 KPC (encouraging the parties to enter into a settlement). At this stage of the proceedings the court should in particular seek proper formulation of claims of the plaintiff146. The purpose of the initial examination and the preliminary in-quiries is also to remedy the defects of a statement of claim concerning correct indication of a defendant147.

Article 468 KPC governs the remedy of formal defects of a claim differently from the general rules. Therefore, as a specific provision, it excludes the applica-tion of Art. 130 § 1 and § 2 KPC which provides for a return of the statement of claim as a result of failure to remedy such defects148. If, as a result of preliminary inquiries and following the respective court summons, the plaintiff fails to rem-edy the defects found, the labour court should suspend the proceedings under Art. 177 § 1 (6) KPC149. However, Art. 130 § 1 KPC will apply to a statement of claim initiating a procedure in a labour law matter if the pleading has such for-mal defects which cannot be remedied in the course of the preliminary inquiries (Art. 468 § 2 (1) KPC)150.

The provisions of Art. 468 KPC do not exclude but to some extent relax the audi alteram partem principle. That article imposes on a court an obligation to consider what evidence should be taken in order to clarify the disputed facts be-tween the parties. However, this should not lead to a conclusion that the court is entirely obligated to conduct the evidentiary procedure on its own motion (ex officio). First of all, the court should encourage a party/the parties to take certain procedural steps151. This has been confirmed in a ruling of the Supreme Court in which the Court held that a social insurance court is not obliged to conduct the evidentiary procedure ex officio. According to the Supreme Court, Art. 468 KPC cannot be the basis for opposite statement. Although the prelim-inary inquiries include determination which of the circumstances relevant for resolution of the case concerned are disputable between the parties and whether and what evidence should be taken to clarify the contentious issues, still the pos-

146 Judgment of the Supreme Court of 12.8.1966, I PR 254/66, NP 1967, No. 4, p. 574.147 Judgment of the Supreme Court of 5.3.2009, II PK 213/08, OSNP 2010, No. 19–20, item 235

and of 15.7.2011, I PK 10/11, OSNP 2012, No. 19–20, item 233.148 Decision of the Supreme Court of 6.2.1974, II PZ 3/74, Legalis.149 See: J. Iwulski, Komentarz do Kodeksu postępowania cywilnego [Commentary to the Code of

Civil Procedure], commentary to Art. 468, Lex/el. 2017. 150 Decision of the Supreme Court of 21.4.2009, I UZ 7/09, OSNP 2011, No. 1–2, item 28. Taking

into account the facts of the case concerned the court held that attachment to the appeal of a photo-copy of a power of attorney instead of its original or a certified copy is not a defect which cannot be remedied in the course of the preliminary inquiries and therefore Art. 130 § 1 KPC was not applicable and thus could not be a legal basis for return of the appeal brought by the appellant.

151 See: P. Prusinowski, Rozstrzyganie indywidualnych sporów ze stosunku pracy [Resolution of individual employment disputes], Warsaw 2013, p. 119.


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sible issuance in a closed session of a decision determining the evidence and the facts which should be established does not mean an exception (derogation) from the fundamental rules of the procedure. The Supreme Court emphasized that the adversarial principle (audi alteram partem) applies fully also in matters relat-ing to pension under social (accident) insurance. The burden of proof in respect of the circumstances which justify rights of the insured lies with the insured. The court is an arbitrator who cannot engage in stimulating the direction of the evidentiary procedure, even in these matters. Although for various reasons the pension authority is a stronger party, still it does not give grounds to „appropri-ate” balancing of the situation by the insurance court. The procedure provides for certain mechanism to equalize such imbalance. However, the mechanism laid down in Art. 468 KPC does not constitute an independent basis for the court to conduct the evidentiary procedure on its own motion. Only following the claims and motions for evidence submitted by a party (Art. 232 KPC), the court, taking into account the applicable substantive law, should decide whether the (disputable) facts in respect of which evidence should be taken, are relevant for the resolution of the case (Art. 227 KPC)152. Although the above notes refer to an insurance court and the insured, still they should be referred also to mat-ters heard before a labour court.

The jurisdiction of the court determined on the basis of the amount of the claim pursued is not changed as a result of the outcome of the inquiry hearing153.

As is rightly pointed out, a court may, in the course of the preliminary in-quiries, give instructions to a party acting without a professional representative as specified in Art. 210 § 21 KPC. This follows from the nature of the preliminary inquiries which serve preparation of the proceedings so that they can end as soon

152 See a judgment of the Supreme Court of 8.1.2008, I UK 193/07, OSNP 2009, No. 3–4, item 52. Worth noting is a judgment of the Supreme Court of 25.3.1998, II UKN 574/97, OSNAPiUS 1999, No. 6, item 216 in which the Court held that „an opinion of a Court of Appeal according to which amendment of the wording of Art. 3 and Art. 232 KPC releases the court from admitting the evidence not offered by a party is unacceptable. Although the mentioned provision does not provide for an obligation of a court to admit the evidence not offered by the party, but it provides that the court may admit such evidence. Although it is a power of the court but in connection with the wording of Art. 468 § 1 and 2 KPC it cannot be accepted that the court hearing a labour law or social insurance matter might disregard the evidence decisive for resolution of the case”. A different interpretation was presented by the Supreme Court in a judgment of 10.12.1997, II UKN 394/97, OSNP 1998, No. 20, item 614 and in a judgment of 16.12.1997, II UKN 406/97, OSNP 1998, No. 21, item 643, in which the Court held that introduction by the act of 1.3.1996 on the amendment of the Code of Civil Procedure (Journal of Laws [Dz.U.], No. 43, item 189) of changes in the civil procedure, in particular deletion of Art. 3 § 2 and amendment of Art. 6 and 232 KPC mean dominance in the process of the adversarial principle (audi alteram partem) and deviation from the court’s responsibility for the outcome of the evidentiary procedure which is at the disposal of the parties.

153 See a decision of the Supreme Court of 11.12.1967, II PZ 60/67, OSNCP 1968, No. 5, item 93.

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as possible154. However, the admissibility of such instruction in the course of the preparatory inquiries is not always clear. Article 210 KPC refers to the course of the hearing (rozprawa) which might suggest that the advice/instructions should be given already after commencement of the hearing. For that reason, courts of-ten instruct the parties twice, both in the course of the preliminary inquiries and again at the hearing.

8.4. Omission of the preliminary inquiriesThe preliminary inquiries may be omitted where:

– the matter has been heard before the conciliation commission,– the preliminary inquiries will not accelerate the proceedings,– carrying out the preliminary inquiries is for other reasons pointless.

Although in the case-law it is pointed out that failure to conduct preliminary inquiries to specify in more detail the claim raised by the plaintiff constitutes non-compliance with procedural rules affecting the outcome of the case155, the allegation that the procedure is invalid as a result of failure of the court of the first instance to carry out the preliminary inquiries laid down in Art. 486 KPC is unfounded. Failure to carry out the inquiries does not deprive the defendant of an opportunity to defend his rights156. The alleged failure to comply with the obligations laid down in Art. 468 KPC (which are imposed on the court of the first instance) cannot be invoked in the cassation appeal against a judgment of a court of appeal157.

Art. 468 KPC does not apply if the employee is a defendant (Art. 4777 KPC) and in a simplified labour law procedure (Art. 50514 § 1 KPC), as well as in the procedure initiated by a cassation appeal (Art. 4751 KPC) and by an action for annulment of a valid judgment (Art. 4751 in connection with Art. 42412 KPC).

154 See: P. Prusinowski, Rozstrzyganie… [Resolution...], p. 121.155 Judgment of the Supreme Court of 16.11.1965, I PR 389/65, OSNCP 1966, No. 6, item 100.156 Judgment of the Supreme Court of 21.4.1998, II UKN 4/98, OSNAPiUS 1999, No. 7, item 252.157 Judgment of the Supreme Court of 7.9.1999, I PKN 243/99, OSNAPiUS 2001, No. 1, item 8;

judgment of the Supreme Court of 15.11.2001, II UKN 630/00, Legalis.


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§ 9. A court hearing in labour law matters

M. Wujczyk

9.1. Overall characteristicsA court hearing (rozprawa sądowa) should be considered a central point of

the civil litigation158, including this in labour law matters. It is governed by the key principles of civil litigation such as the principle of direct adduction of evi-dence, the adversarial principle (audi alteram partem), the principle of openness and the principle of oral hearing159.

The civil procedure covers one court hearing (see Art. 316) which is held on several dates.

9.2. Preparation of the court hearing If it is necessary to schedule a hearing, a presiding judge should, as appropri-

ate, on the basis of a statement of claim and other pleadings, issue orders to pre-pare the court hearing. The presiding judge may in particular: – summon the parties to appear at the hearing in person or by a representative, – demand that a state organisational unit or a local government organisational

unit provides at the hearing the evidence in its possession if a party is unable to obtain such evidence on its own,

– summon to the hearing the witnesses named by a party,– summon to the hearing the expert witnesses appointed by the parties,– order submission of documents, objects of examination, books, plans, etc.

The orders referred to above are issued – depending on the distribution of tasks – either by a presiding judge of a division (§ 57 (1) and (4) of the rules of procedure of general courts (RegSądR)), or by a presiding judge of the court sit-ting (§ 61 (1)(1) RegSądR).

It is rightly pointed out that relevant examination (oględziny) should be car-ried out by a court, even if the above provision uses the term „presiding judge”, in accordance with the provisions of Art. 292 – 298 KPC. Therefore, the basis for such examination cannot be an order of a presiding judge, but it should be a de-

158 See: B. Bladowski, Metody pracy sędziego w sprawach cywilnych [Methods of work of a judge in civil matters], Cracow 1999, p. 151–189.

159 A. Zieliński, Postępowanie cywilne. Kompendium [Civil Procedure. A compendium], Warsaw 2012, p. 128.

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cision (Art. 47 § 2 KPC). The presiding judge may also refer such case to be dealt with in camera by another judge160. A decision to carry out the examination as well as the examination itself should not be carried out before service of a state-ment of claim upon the defendant (lis pendens). The only exception is where the examination is carried out to secure evidence (Art. 310–315 KPC).

9.3. Date of the court hearingIn the labour law matters initiated by an employee a date of the hearing

should be so scheduled as to ensure that the hearing is held not later than within two weeks from the date of completion of the preliminary inquiries or, if the lat-ter have not been carried out, from the date of filing a statement of claim, unless there are obstacles which cannot be removed (Art. 471 KPC). This does not apply to a cassation appeal and to the proceedings before a Supreme Court initiated by the cassation appeal (Art. 4751 KPC). Although the time-limit of 2 weeks is only indicative, it serves fulfilment of the obligation imposed on the state to organize the work of a court in such a manner to prevent lengthiness of the proceedings.

The expression „the obstacles which cannot be removed” should be interpret-ed by the court hearing the case, however, undoubtedly it should be interpreted restrictively. Only extraordinary circumstances which actually make it impos-sible to hear the case might justify postponement of the date of a court hearing.

It should be noted that because of the significant overload of the judiciary, the time-limit set out in Art. 471 KPC is in fact fictional and the mentioned over-load is the most frequent reason for scheduling a date of a hearing significantly exceeding the statutory time-limits. This should be criticised. Undoubtedly, in the justice system in labour law matters certain changes should be introduced immediately in order to comply with the principle of speed of process in labour law matters. On the other hand, it also seems desired to make the time-limits for scheduling the first hearing more realistic by extending them (for example up to one month). This is because it is very unlikely that even with significant expen-ditures for the judiciary it would be possible to observe the already applicable time-limit of 2 weeks in most of the labour law matters brought by employees.

9.4. Access to the court hearingIn principle, a hearing is held in open court. The hearings in open court may

be accessed – apart from the parties and the persons summoned – only by adult

160 S. Dmowski, [in:] K. Piasecki (ed.), Kodeks postępowania cywilnego. Komentarz do art. 1–50514 [Code of the Civil Procedure. Commentary to Articles 1–50514], vol. I, Warsaw 2006, p. 965.


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persons (Art. 152 KPC). In the situations prescribed by law the court may order that the entire hearing or its part be held in camera. A respective decision should be issued and publicly announced. A court should order, on its own motion, that a hearing be held in camera, if the public hearing of the case poses risk to the public order or morality or if confidential information or, upon request, business secret may be disclosed. Moreover, the court may order that a court hearing or a part of it be held, upon request of a party, in camera, if the court finds that the reasons indicated by the party are justified or where details of family life will be discussed. Such reason may also be employer’s fear of disclosure of strictly confi-dential information if such disclosure might cause a serious harm to the employ-er. If the hearing is ordered to be held in camera, the public will be denied access to the courtroom. The in camera hearing may be attended also by the entities to whom the provisions on the public prosecutor apply respectively, including a rep-resentative of a social organisation and a labour inspector.

An issue which often arouses a great deal of emotion is attendance of press at a court hearing and the possible recording and broadcasting. The provisions governing the civil procedure merely indicate that the president of the court may also designate an appropriate place for the representatives of press and other mass media (§ 67 of the rules of procedure of general courts (RegSądR)). In the absence of a detailed regulation it is up to the judge to decide whether recording or broadcasting will be permitted or not. In this regard it is reasonable to follow the guidelines applicable in the Polish criminal procedure (Art. 357 of the Code of Criminal Procedure KPK). Given the guidelines prescribed by this provision, it should be held that a court, in considering the possibility to broadcast, should take into account:1) existence of a legitimate social interest,2) no impediment to conducting the hearing,3) important interest of a party to the proceedings161.

9.5. Conduct of the hearingA hearing starts with calling the case. Calling the case means a loud notifica-

tion of the waiting persons of the start of the hearing. Next, the presiding judge should check the presence of the parties and their representatives, as well as oth-er persons invited to attend, if any (witnesses, expert witnesses). The presence of persons who have appeared, as well as the absence of persons summoned, includ-

161 See more in: R. Koper, Jawność rozprawy głównej a ochrona prawa do prywatności w procesie karnym [Trial in open court vs. protection of the right to privacy in the criminal procedure], Warsaw 2010, p. 341–366.

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ing the information on the proper or improper service of court summons, should be entered in the minutes162.

Next, before the hearing commences, the presiding judge should allow sub-mission by the parties of formal proposals acceptable at this stage of the proceed-ings, such as for example withdrawal of a claim.

The hearing starts with submission of views by the parties. Floor is given to the parties by the presiding judge. The first to speak is the plaintiff. It is a for-mal start of the hearing. The plaintiff may specify the subject-matter of his claim and briefly describe the circumstances which in his opinion justify his claim. The plaintiff may present additional allegations, apart from those raised in the statement of claim, and raise new claims, if any and submit evidence in support of the latter. However, in practice it is often limited to supporting the action brought and it should be considered sufficient. Next, the presiding judge gives the floor to the defendant. Also the defendant may file motions/proposals and offer evi-dence or apply for dismissal of the claim. If a party is absent during the hearing, the presiding judge or a judge rapporteur appointed by the former should present the motions/proposals, claims and evidence submitted by the party and included in the files of the case (Art. 211 KPC).

Prior to commencement of the evidentiary procedure the court may conduct an informative interrogation of the parties under Art. 212 KPC. Such interroga-tion does not constitute evidence referred to in Art. 299 KPC and it should only help clarify the statements of the parties and allow for a preliminary determina-tion of the status of the case. The court should issue a respective order regard-ing the informative interrogation which should be noted in the minutes so that no doubts arise as to the nature of that activity. In the course of the informative interrogation the court should seek to establish the relevant circumstances dis-putable between the parties. However, the court is not precluded from interro-gating the parties on irrelevant and undisputed circumstances. Although the in-formative depositions made by a party are not considered evidence in terms of Art. 233 (1) KPC, according to Art. 3 (1) KPC the parties must speak the truth and must not conceal anything. Therefore the convergence or divergence be-tween the informative depositions and the evidentiary statement of one and the same party is relevant for the assessment of credibility of such evidentiary state-ment163. As rightly pointed out in the literature, this means that even if the court establishing the facts underlying the resolution of the case concerned cannot rely on the depositions made by the parties in the course of the informative interro-

162 H. Pietrzykowski, Metodologia pracy sędziego w sprawach cywilnych [Methods of work of a judge in civil matters], Warsaw 2011, p. 402.

163 See a judgment of the Supreme Court of 15.6.1973, II CR 257/73, OSNCP 1974, No. 4, item 76.


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gation (since they do not constitute evidence), still a contradiction between the statements made in the course of informative depositions and those made dur-ing the hearing of a party under Art. 299 KPC will be of major importance for the evaluation of credibility of the party164.

Given the above, the practice adopted by the courts according to which the evidence obtained from hearing of the parties is often reduced to asking a party whether it confirms its depositions made in the course of the informative interro-gation and whether it would like to add anything should be considered improper. This is because such action cannot be considered a proper taking of evidence as stipulated in Art. 299 KPC.

After the amendment of the Code of Civil Procedure under the Act of 16.9.2001 on the amendment of the Code of Civil Procedure and of certain oth-er acts, as from 3.5.2012 a preparatory document/letter (pismo przygotowawcze) may be filed only where the court so decides, unless it includes only a motion for evidence (Art. 207 § 3 KPC). Therefore, a party wishing to file a preparatory document/letter should first ask the court for permission.

In the course of labour law matters it is often necessary to adjourn the court hearing. This is possible where:– the absence of a party (or a representative of a party) is caused by (Art. 214 KPC):– a defective service of summons,– extraordinary event (such as traffic accident, weather conditions)165,– other obstacle which cannot be overcome; – the court decides to summon to participate in the case or notify of the pending

proceedings the persons who have not yet participated in the case concerned as plaintiffs or as defendants (Art. 215 KPC).In such cases the adjournment of the hearing is obligatory. Moreover, the

court, even upon mutual request of the parties, may postpone the date of the hearing only for a good cause (Art. 156 KPC). It is the court’s role to assess the „good cause”166. This may be a necessity to carry out settlement negotia-tions. The cause of the adjournment may also be a necessity to supplement ev-idence, as well as non-appearance of a party, of its representative or of other participants in the proceedings, if any. In the latter case, according to Art. 2141 KPC, to excuse an absence caused by illness of the parties, of their statutory rep-

164 H. Pietrzykowski, Metodologia… [Methods…], p. 406.165 According to Court of Appeal in Gdańsk, an example of an „extraordinary event” causing the

absence of a party at the hearing (Art. 214 KPC) is a blockade of access roads to court by protesting farmers. See a judgment of the Court of Appeal in Gdańsk of 24.8.1999, I Aca 412/99, OSA 2002, No. 2, item 15.

166 See: Z. Świeboda, Posiedzenie sądu w postępowaniu cywilnym [Court sessions in civil proceed-ings], NP 1982, No. 5–6.

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resentatives, attorneys, witnesses and other participants in the proceedings it is necessary to submit a certificate confirming the inability to appear, issued by a court-appointed physician167. It cannot be considered that every illness, doc-umented by a medical certificate of temporary incapacity for work, regardless of any related circumstances, such as its duration, should always be automati-cally identified as an obstacle which cannot be overcome within the meaning of Art. 214 KPC168. Within the meaning of that provision, an obstacle which can-not be overcome may be considered only such illness of a litigation representa-tive which – taking into account the date of the hearing – makes it practically impossible for a party to appoint a substitute or another representative or to ar-rive at the hearing to defend its interests. However, an absence of a representa-tive of a party at the hearing caused by his holiday leave cannot be considered an extraordinary event169.

It should be kept in mind that a defective dismissal of an application for ad-journment of a hearing at which a ruling ending the proceedings has been issued constitutes breach of procedural laws depriving a party demanding the adjourn-ment of the possibility to defend its rights170.

It is worth noting that in the course of a hearing the parties, as well as other persons affected by an order of a presiding judge, may appeal against such order to a court (Art. 226 KPC). However, such appeal should be filed before the hear-ing is closed at the latest. If a party fails to observe that time-limit, it will lose the right to complain against the decision of the presiding judge at further stages of the proceedings (for example during the appeal proceedings). If a party wishes to maintain the right to invoke infringement by the court of procedural laws, such party should, under Art. 162 KPC, at the hearing and if the party was not present – at the next hearing, bring such infringements to the attention of the court and request that a respective objection be entered in the minutes171. Article 162 KPC applies also in the case of failures regarding the evidentiary procedure, including the case of omission of certain evidence172.

167 A. Nowak, Odroczenie rozprawy w postępowaniu cywilnym – uwagi na marginesie orzec-znictwa Sądu Najwyższego oraz sądów apelacyjnych [Adjournment of a hearing in civil procedure in the case-law of the Supreme Court and of courts of appeal], MoP 2004, No. 3, p. 149–150.

168 See a judgment of the Supreme Court of 8.10.1998, II CKN 757/97, Legalis.169 See a judgment of the Supreme Court of 24.3.2000, I PKN 546/99, OSNAPiUS 2001, No. 15,

item 482.170 See a judgment of the Supreme Court of 4.9.2008 , IV CSK 189/08, Legalis.171 A court of appeal in Katowice pointed out in its judgment of 14.1.2011 (I ACa 1160/10) that

„A party may effectively plead infringement of the principles of procedural preclusion (limitation periods) in the appeal, provided that the party had previously notified the court to that infringement in accordance with Article 162 KPC, otherwise the court should not take such plea into account”.

172 See a judgment of the Court of Appeal in Poznań of 17.12.2008, I ACa 890/08, Legalis.


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The further stage is the evidentiary procedure (postępowanie dowodowe) de-scribed in detail in a separate chapter. The evidentiary procedure is followed by a stage of a so-called discussion on the results of the evidentiary procedure (rozstrząsanie wyników postępowania dowodowego)173. At this stage the presid-ing judge should give the floor to the parties (first the plaintiff, then the defend-ant), and should allow them to comment on the evidence taken and to assess the case. After the final speeches of the parties the presiding judge will close the hear-ing (Art. 224 § 1 KPC). The hearing may be closed also where more evidence is planned to be taken by a designated judge or by a requested court or documen-tary evidence is planned to be taken or a public administration body is to be in-terrogated but the court finds that taking such evidence does not require holding a hearing. Article 224 § 2 KPC, as a specific provision and an exception to the principle of open and direct adduction of evidence, is subject to a narrow inter-pretation which means that after the hearing is closed the court may take only the evidence listed in that provision, namely: the evidence taken by a designated judge or by a requested court or documentary evidence or declarations of state authorities. If, after the hearing has been closed, documentary evidence is taken from documents drawn up by one of the parties in the proceedings, it is a viola-tion of that provision which may significantly affect the outcome of the case174.

The presiding judge closes the hearing if the court finds that the case has been sufficiently clarified175. The court hearing is closed in a form of an order (zarządzenie).

The court closing the hearing informs the parties of the place and date of an-nouncement of a ruling (see more in the chapter regarding judgments and juris-diction in labour law matters).

A court may re-open the closed hearing (Art. 225 KPC) by issuance of a re-spective decision which is not subject to appeal. This may be the case if:– significant circumstances have been disclosed following the closing of the

hearing (Art. 316 § 2 KPC), for example the so-called notorious facts – (Art. 228 § 2 KPC),

– a party invoked in a pleading new facts and evidence relevant for resolution of the case (Art. 381 KPC in connection with Art. 227 KPC),

– the composition of the court has changed after the hearing has been closed and before delivery of a judgment (Art. 323 KPC)176.

173 H. Pietrzykowski, Metodologia… [Methods…], p. 407.174 See a judgment of the Supreme Court of 19.9.2003, II UK 328/02, Legalis.175 See a judgment of the Supreme Court of 7.2.2002, II UKN 43/01, Legalis.176 A. Zieliński, [in:] A. Zieliński, K. Flaga-Gieruszyńska, Kodeks postępowania cywilnego Komen-

tarz [Code of Civil Procedure. Commentary], Warsaw 2008, commentary to Art. 225.

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The Supreme Court pointed out that, in a labour law matter, issuance of a de-cision by a presiding judge, in camera, on re-opening of the closed hearing and its adjournment constitutes breach of procedural provisions but does not result in invalidity of the proceedings resulting from composition of the court contrary to law (Art. 379 (4) KPC)177.

9.6. Services and summonsIn labour law matters the courts perform service of process usually through

a public postal operator178. However, because of the principle of limited formal-ism applicable in such proceedings, the legislature introduced a special form of service of process to accelerate the proceedings. According to Art. 472 § 1 a la-bour court may summon the parties, the witnesses, expert witnesses and oth-er persons, in a manner which it considers most expedient, even excluding the methods laid down in the general provisions, if the court considers it necessary to accelerate examination of the case. This applies also to the service of process and orders aimed at preparation of the hearing, in particular to a demand to submit personal files and other documents necessary for the resolution of the case con-cerned. The rules for the service of process and summons referred to in Art. 472 KPC are specified in detail in the rules of procedure of the courts of law (regu-lamin urzędowania sądów powszechnych). According to the latter, an employee may be summoned under Art. 472 KPC in particular via phone, through his em-ployer. A respective note on such summons should be made in the files of the case, including a name and a position of a person to whom the information was given. The service of process or summons can also be made through other forms of communication, e.g. via fax or e-mail or even text message. It should be noted that the laws allow only the service of process and not taking the evidence. There-fore, it is not acceptable to obtain, through the means of distance communica-tion, any information on the salary of an employee and make a respective note179.

The procedural consequences of the service of process or summons made according to Art. 472 § 1 KPC depend on whether there is no doubt that they reached the addressee. The „no-doubt” condition should always be assessed on a case-by-case basis. It can be pointed out that this relates to situations where re-ceipt of a message by the addressee is probable, verging on certainty. Even if it is not required by law, it is a common practice of court employees to make offi-

177 See a resolution of the Supreme Court of 21.12.2004, I PZP 10/04, OSNP 2005, No. 13, item 184.

178 The service of process can be made also through other postal operator, as well as by an court employee, bailiff or by court delivery services (Art. 131 KPC).

179 See a judgment of the Supreme Court of 15.4.1969, III PRN 20/69, NP 1970, No. 9, p. 1363.


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cial notes confirming a telephone conversation or service or summons made in other form180.

However, the above regulation does not exclude the rule laid down in Art. 149 § 2 KPC according to which there must be a period of at least 3 days between the date of summons and the date of the hearing181.

Notification of a party by phone on the date of the appeal hearing (Art. 472 KPC) may result in the party’s error as to the date of the hearing and therefore may justify exceeding the time-limit for filing a motion for service of judgment with a reasoning182.

A letter which, upon court’s demand under Art. 472 § 2 KPC, presents docu-ments required for the preparation of an appeal hearing is not to be served upon the opposite party183.

The method of service of process and summons laid down in Art. 472 KPC does not apply in matters where the employee is a defendant (Art. 4771 KPC).

§ 10. Evidentiary procedure in labour law matters

M. Wujczyk

10.1. Overall characteristicsIn the civil trial the parties must prove the circumstances which are rele-

vant for the case concerned184. The subject of evidence should never be a legal norm. However, it is rightly pointed out that the subject of evidence in the civil proceedings may be the principles of life experience, customary law, and some-times even specialised fields of law (such as foreign law) rarely used in the judi-cial practice185.

In principle, a burden of proof lies with the plaintiff since according to Art. 6 KC the burden of proof as to a fact lies with a person who derives legal conse-

180 M. Mędrala, Funkcja ochronna… [The protective function...], p. 179.181 See a judgment of the Supreme Court of 7.4.2006, I PK 149/05, OSNP 2007, No. 7-8, item 91.182 See a judgment of the Supreme Court (SN) of 16.12.2005, II PZ 47/05, OSNP 2006, No. 23–24,

item 360.183 See a judgment of the Supreme Court of 26.6.2011, II PK 273/11, Legalis.184 K. Piasecki, System dowodów i postępowanie dowodowe w sprawach cywilnych [System of

evidence and evidentiary procedure in civil matters], Warsaw 2010, p. 78.185 T. Gizbert-Studnicki, Przedmiot ustaleń sądu w procesie cywilnym [Court findings in civil

proceedings], KSP 1974, No. VII, p. 145–172.

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quences from that fact186. It is worth noting that in labour law matters, apart from a number of derogations prescribed under statutory provisions (for example in respect of a plea of discrimination – Art. 183b § 1 KP187 the burden of proof is re-versed to the employer, and in matters brought by an employer regarding liabil-ity for entrusted property (Art. 124 § 3 KP) the burden of proof is reversed to an employee), the case-law has developed an exception to the apportionment of the burden of proof laid down in Art. 6 KC. Namely, in its judgment of 14.5.1999, the Supreme Court held that an employer who, contrary to the obligation laid down in Art. 94 (9a) KP does not keep attendance lists, payroll or other docu-mentation recording the working time of an employee and the wage paid to the latter, must take into account that he shall bear the burden of proof of employee’s absences, their duration and the remuneration paid188. In matters arising from a workplace mobbing (bullying), an employee must prove that he was a victim of the mobbing, as well as that he suffered from health disturbance if he seeks compensation189.

In exceptional circumstances, the court may admit taking the evidence not requested by the parties, on its own motion (Art. 232 KPC). Obviously, the court should exercise its ex officio powers with caution. The court may be faulted when it did not admit certain evidence ex officio even if there were reasons for such admission, but it cannot be faulted when it exercised its discretional powers and admitted certain evidence. The right of the court to admit evidence ex officio is not excluded in a situation where such evidence serves determination of inca-pacity for work as a pre-condition for a pension entitlement, where the obtained expert witness opinion is not sufficient190. The examples of circumstances which

186 H. Dolecki, Ciężar dowodu w polskim procesie cywilnym [Burden of proof in the Polish civil procedure], Warsaw 1998, p. 65.

187 A. Tyc, Ciężar dowodu w sprawach antydyskriminacyjnych [Burden of proof in anti-discrim-ination matters], Gdańsko-Łódzkie Roczniki Prawa Pracy i Prawa Socjalnego 2011, No. 1, p. 26; P. Czarnecki, Rozkład ciężaru dowodu w sprawach na tle dyskryminacji [Burden of proof in discrimi-nation matters], PiZS 2006, No. 3, p. 13. Judgment of the Supreme Court of 5.12.2006, II PK 112/06, OSP 2008, No. 1–2, item 12.

188 See a judgment of the Supreme Court of 14.5.1999, I PKN 62/99, OSNAPiUS 2000, No. 15, item 579. However, in its judgment of 9.7.2007, II PK 34/09, Legalis, the Supreme Court slightly eased its position on the reversal of the burden of proof to the employer and pointed out that „in separate proceedings in labour law matters brought by an employee regarding overtime pay, a general proce-dural rule applies according to which the plaintiff should prove his allegations right, however, with such modification that a failure of an employer to comply with the obligation to keep proper records of working time, will produce negative procedural consequences for the latter if the employee proves his allegations with evidence other than the working time documentation”.

189 G. Jędrejek, Postępowanie dowodowe w sprawie mobbingowej [Evidentiary procedure in mat-ters relating to workplace mobbing], MoPr 2008, No. 12, p. 626.

190 See a judgment of the Supreme Court of 4.10.2006, II UK 43/06, OSNP 2007, No. 19–20, item 293.


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justify taking the evidence ex officio include helplessness of a party, a reasonable suspicion of fictitious proceedings conducted to circumvent law or the need for clarification of possible doubts as to the validity of the proceedings191. In labour law matters, in particular the first of the mentioned reasons will justify the ex of-ficio activities of the court.

In the cases provided for in law, a party may limit its activity to substantiation of facts (Art. 243 KPC). The substantiation cannot be based solely on allegations but must be supported by any evidence which, however, does not have to provide certainty as to the substantiated circumstances192.

A party formulating a motion for evidence should clearly indicate the facts to be established and the evidence to be used to establish such facts. A very gen-eral indication of circumstances to be proven (such as circumstances specified in the statement of claim) should be considered incorrect and posing a risk of dis-missal of the motion193.

The court decides on taking the evidence by an issuance of a decision as to the evidence which should include:– specification of facts to be established,– specification of evidence,– as appropriate, specification of a judge or of a court responsible for taking the

evidence,– if possible – the date when and the place where the evidence will be taken194.

The issued decision as to the evidence may be amended, supplemented or an-nuled by the court, both on request and on its own motion (Art. 240 § 1 KPC). The basis for annulment of the decision as to the evidence may be: admission of fact which raises no doubt, clarification of disputable circumstances with other evidence, conviction becoming final195.

A disciplinary measure which may be imposed on the parties to a dispute in labour law matters is a fine prescribed by the provisions on penalties for non-appearance of a witness and/or a refusal to award costs if a party, without excuse, fails to comply with decisions or orders of the court in the course of the proceed-ings. If the party is an organisational unit, the fine is imposed on the employee responsible for compliance with the decisions or orders, and if such employee

191 See a judgment of the Supreme Court of 10.11.2004, II CK 212/04, Legalis.192 M. Izykowski, Charakterystyka prawna uprawdopodobnienia w postępowaniu cywilnym

[Legal characteristics of prima facie evidence in civil proceedings], NP 1980, No. 3, p. 34.193 See: H. Pietrzykowski, Czynności procesowe zawodowego pełnomocnika w sprawach cywil-

nych [Procedural steps of a professional representative in civil matters], Warsaw 2010, p. 253.194 B. Bladowski, Metody… [Methods…], p. 132.195 See: J. Turek, Czynności dowodowe sądu w procesie cywilnym [Evidentiary activities of a court

in civil proceedings], Warsaw 2011, p. 59.

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is not designated or cannot be determined – on a manager of the unit (Art. 475 KPC). The court’s decision or order may apply to a number of various issues such as provision of address of a witness by an employer, requested by an opposite par-ty, submission of a document, provision of personnel files, etc196. Therefore, the above regulation should be considered an exception to a general rule according to which a refusal by a party to provide evidence is not subject to repression but may cause certain negative procedural consequences197.

The amendment to the provisions of the Code of Civil Procedure introduced changes aimed at certain limitation of freedom of the parties in respect of invo-cation of evidence. It was assumed that all evidence should be presented in the statement of claim, in a statement of defence or further pleading, if any. The court shall omit delayed claims and evidence unless the party can substantiate that fail-ure to present such evidence in the abovementioned pleadings was not due to its fault or that admission of the delayed claims and evidence will not delay the pro-ceedings or that other extraordinary circumstances have occurred (Art. 203 § 6 KPC). It applies also to the proceedings in labour law matters.

It has rightly been pointed out that as regards the labour law matters, the main evidence include: – documentary evidence,– evidence from testimonies of witnesses,– evidence from expert opinions,– evidence from hearing of the parties198.

This catalogue may include also:– evidence from audio and video recording and transmitting equipment.– the so-called evidence from case file (dowód z akt).

Further deliberations in this chapter will be limited to the abovementioned evidence.

10.2. Documentary evidenceDocumentary evidence is one of the most common and most important evi-

dence in the civil procedure. According to Art. 248 § 1 KPC, everyone shall pro-vide, when ordered by a court, at a specified time and place, a document in his possession which constitutes evidence of a fact relevant for the resolution of the case unless the document contains confidential information.

196 M. Manowska, Postępowanie odrębne… [Separate procedure… ], p. 96.197 M. Mędrala, Funkcja ochronna… [The protective function...], p. 245.198 K.W. Baran, Procesowe… [Procedural…], p. 264.


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According to the Code of Civil Procedure, documents can be divided into public documents (Art. 244 KPC) and private documents (Art. 245 KPC). In la-bour law matters the evidence include in particular private documents such as personnel files, time sheets, salary sheets, illness sheets, post-accident reports, registers of accidents at work and occupational diseases199.

It has been rightly pointed out in the legal writings that what cannot serve as evidence are private documents, letters, notes or tapes which were taken with-out knowledge or consent of a person to whom they belong if they contain infor-mation which is protected by law and such person exercises the right to refuse disclosure200.

According to a prevailing view, a constituent element of both a public and a private document is a signature201. However, more and more frequent is the opinion according to which a private document, unlike a public document, may function also without a hand signature202. The nature of the signature on a docu-ment is of significant importance in view of the more and more frequent submis-sion as evidence of electronic printouts of e-mails or other computer printouts (presentations, spreadsheets, notes). A majority of legal commentators emphasize that also such document, in order to be considered evidence, should be signed203. It should be noted that the judicial practice is considerably different from the standpoint presented in legal writings. In labour law matters often also not signed computer printouts are taken by the court into account in the assessment of evi-dence204. Nevertheless, in order to avoid the risk that the non-signed computer printouts will be omitted by the court, a party or its representative should en-sure that they are signed (for example, during printout of e-mail messages these should be signed by a person to whose mailbox such messages were sent). A pho-tocopy – as a projection of an original – may be considered a certified copy pro-vided that it is certified for conformity with the original205.

199 See: K.W. Baran, Procesowe… [Procedural… ], p. 264.200 H. Pietrzykowski, Czynności… [Procedural…], p. 261.201 K. Knopek, Dokument w procesie cywilnym [A document in a civil trial], Poznań 1993, p. 35.202 A.K. Bieliński, Charakter podpisu w polskim prawie cywilnym materialnym i procesowym

[Signature in the Polish substantive and procedural law], Warsaw 2007, p. 78; B. Karczmarek, Dowód z dokumentu elektronicznego w świetle przepisów o dowodach w postępowaniu w postępowaniu ele-ktronicznym [Electronic document as the evidence in the context of provisions on evidence in electronic procedure], PME 2006, No. 5, passim.

203 A.K. Bieliński, Charakter… [Signature…], p. 102; P. Kosiński, Czy wydruk dokumentu elek-tronicznego może stanowić dowód? [Can a printout of an electronic document constitute evidence?], Radca Prawny 2012, No. 132, p. 19.

204 See: K. Knoppek, Wydruk komputerowy jako dowód w procesie cywilnym [A computer print-out as evidence in the civil trial], PiP 1993, No. 2, p. 45.

205 See a judgment of the Supreme Court of 10.7.2009, II CSK 65/09, Legalis.

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It should be emphasized that in labour law matters the provisions restricting the evidence in a form of testimonies of witnesses and hearing of the parties do not apply. This refers in particular to the restrictions laid down in Art. 246 and 247 KPC. Therefore, the evidence from testimonies of witnesses and hearing of the parties may be admitted as evidence also where:– law or contract requires a written form for a legal transaction even if the

document relating to the transaction has been lost, destroyed or taken by

a third party,

– the evidence is taken above or contrary to the wording of the documents,

even if it may lead to circumvention of laws on the form reserved under

the pain of nullity and no specific circumstances occur in the case con-

cerned which would justify such evidence.

The above restrictions are removed only where the plaintiff is an employee. On the other hand, they will apply if the action is brought by the employer.

In a dispute concerning the contents of employee’s written request for annual leave and a note made on such request form by the employer, the provisions re-stricting the admission (as evidence) of testimonies of witnesses and hearing of the parties will not apply (Art. 473 KPC)206. If the personal files of an employ-ee do not include a copy of a letter of termination of a contract of employment without notice, it does not prove that the contract of employment was terminat-ed without written form and without stating a cause of termination. Compliance with such conditions by the work establishment may be proven with other evi-dence207. According to Art. 473 KPC, in the proceedings in labour law and social insurance matters conducted before a court no restrictions as to evidence apply. Under this exception to the general rules laid down in Art. 247 KPC any fact can be proven with any evidence which the court finds desired and appropriate208.

However, the removal of the restrictions referred to in Art. 473 KPC does not mean that in the proceedings in labour law matters hearing of the parties should be considered obligatory209.

10.3. Evidence from testimonies of witnessesIn labour law matters the evidence from testimonies of witnesses is the most

frequently used measure for resolution of issues in dispute. A party invoking such evidence must clearly specify the facts to be estab-

lished by the testimonies of witnesses and should name the witnesses so that

206 See a judgment of the Supreme Court of 24.2.1998, I PKN 542/97, OSNP 1999, No. 3, item 89.207 See a judgment of the Supreme Court of 21.6.1994, I PRN 35/94, OSNP 1994, No. 9, item 145.208 See a judgment of the Supreme Court of 4.10.2007, I UK 111/07, Legalis.209 See a judgment of the Supreme Court of 26.6.1998, I PKN 94/98, OSNP 1999, No. 14, item 451.


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they can be summoned by a court (Art. 258 KPC). A court may omit motions for evidence from testimonies of witnesses if such motions were formulated in such a manner that the court hearing the case is unable to evaluate them in terms of art. 227 KPC210.

In the Polish civil procedure the so-called hearsay evidence (ex auditu) is not prohibited. Such evidence is subject to the general rules governing the testimo-nies of witnesses, however, the court should assess the credibility of such testi-monies with particular caution211.

A person called as a witness must appear at a time and place indicated by a court to testify. In the case of unexcused absence, the court may impose a fine on the witness and summon the witness again, and in the case of repeated non-appearance the court will impose another fine and may order compulsory ap-pearance (Art. 274 KPC). Non-appearance of a witness cannot be excused by sending a statement in which the witness declares that he has no knowledge re-garding the case concerned or that he wishes to exercise his right to refuse to tes-tify. In my opinion only exceptionally the non-appearance may be excused by an official instruction given to the witness by his employer to perform his du-ties at the time of the court sitting (for example a business trip). This is because an employer is obligated to grant a leave from work to the employee summoned to appear before court212. In the event of an excused absence caused by illness, it is necessary to submit a certificate confirming the inability to appear, issued by a court-appointed physician (Art. 2141 KPC).

The persons listed in Art. 259 KPC cannot be witnesses. In particular, it should be noted that persons unable to perceive or to communicate their obser-vations, as well as statutory representatives of the parties and persons who may be heard as bodies of a legal person or other organisation which has a capacity to be a party to legal proceedings cannot testify. As regards the last group, it is a mis-take to call as witnesses the members of the management board where under the procedural laws they may be heard only as a party. A litigation representative of a party may be heard as a witness provided that he waives his authorization. The combination of these two procedural roles is unacceptable. Otherwise it would be necessary to accept an illogical situation where a witness would be entitled to ask himself questions and such questions could be annulled by the presiding judge or

210 See a decision of the Supreme Court of 28.5.1997, III CKN 16/97, Legalis.211 K. Piasecki, [in:] K. Piasecki (ed.), Kodeks postępowania cywilnego [Code of Civil Procedure],

vol. I, Warsaw 2010, p. 1349.212 § 6 of a regulation of the Minister of Labour and Social Policy of 15.5.1996 on the method

of justification of absences from work and on granting leaves of absence [rozporządzenie Ministra Pracy i Polityki Socjalnej z 15.5.1996 r. w sprawie sposobu usprawiedliwiania nieobecności w pracy oraz udzielania pracownikom zwolnień od pracy] (Journal of Laws [Dz.U], No. 60, item 281).

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the court could order compulsory appearance of a witness who at the same time acts as a representative213.

Under Art. 261 § 1 KPC a witness may refuse to testify if he is a spouse, as-cendant, descendant, a sibling or a relative by affinity in the same line or degree, as well as an adoptive child or parent of a party. Moreover, a witness may refuse to answer a question if his testimony might pose a risk of criminal liability to his relatives or result in their dishonour or serious and direct property damage or if such testimony would violate a significant professional secrecy (Art. 261 § 2 KPC). It should be pointed out that a professional secret referred to in that provi-sion does not mean all information in respect of which the employee undertook the obligation not to disclose it. The professions which are subject to a statuto-ry obligation of secrecy include: a lawyer, a doctor, a dentist, a nurse, a midwife, a journalist, a psychologist, a stockbroker, a tax advisor. It should be pointed out that if a witness testifies in breach of a professional secrecy, it does not limit the right of a court to include such testimonies into the body of evidence. This is be-cause the secrecy obligation is imposed on the witness and not on the court. The court should protect ex officio only the classified information214. Because of the fact that nowadays a frequent practice in workplace bullying cases is that doctors are called as witnesses, it must be noted that a labour court has no grounds to rescind the doctor-patient privilege which should be complied with by such wit-ness. However, a doctor may testify with respect to matters which are subject to the professional secrecy upon consent of a patient215 (usually an employee who brought action). In labour law matters there are also no grounds for releasing a witness from banking secrecy216.

The sequence in which the witnesses should testify is determined by the pre-siding judge. Witnesses who have not yet testified cannot be present during ex-amination of other witnesses. The above principle is not violated in a situation where a witness was present in the courtroom when a party was making state-ments if that party was heard only after the hearing of the witness217.

Before the examination, a witness is advised of his right to refuse to testify and of criminal liability for making false statements. There are three methods of hearing a witness:

213 See a judgment of a Court of Appeal in Warsaw of 6.5.2008, VI ACa 1517/07, Legalis.214 H. Dolecki, T. Wiśniewski (eds), Kodeks postępowania cywilnego. Komentarz. Tom I [Code

of the Civil Procedure. Commentary. Volume I], Warsaw 2011, commentary to Art. 261, Lex/el. 2017. 215 Art. 40 (2)(4) of the Act of 5.12.1996 on the profession of general practitioner and dental

practitioner [ustawa z dnia 5.12.1996 o zawodach lekarza i lekarza dentysty].216 Art. 105 of the Act of 29.8.1997 – banking law (ustawa z 29.8.1997 – Prawo bankowe), (Journal

of Laws [Dz.U.], No. 140, item 939).217 See a ruling of the Supreme Court of 27.4.1946, C I 1099/45, PiP 1946, No. 8, p. 126.


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– a spontaneous speech,– directional questions,– cross examination218.

The provisions of the civil procedure adopted a mixed method which consists in a phase of spontaneous speech which means presentation by the witness of all facts known to him and relevant for the case concerned, followed by the phase of directional questions. In that second phase the questions are asked first by the court and then by a party who requested the hearing of the witness and finally the opposite party. Examination of a witness without asking about the source of knowledge on the presented fact is in breach of Art. 271 § 1 KPC219.

In the course of examination of witnesses, the parties or their representatives should bear in mind that asking biased questions (questions which suggest an answer or suggest several possible versions of events to confirm or deny one of them) is prohibited. Such questions should be repealed by the presiding judge. However, as rightly pointed out by J. Turek: „In establishing whether a question concerned is indeed a biased question, account should be taken of the previous spontaneous speech of that person since the question may refer directly to that part of the speech and when evaluated separately could appear to be biased”220.

A witness testifies orally. However, examination with the use of means of dis-tance communication is also possible (for example in a form of teleconference or videoconference). However, this may take place only in the presence of a request-ed court or a referendary of the requested court. Such form of taking the evidence is not yet popular mainly because of the lack of technical capacities of particu-lar courts. On the other hand, a common practice is hearing witnesses by way of judicial assistance of the requested court. The mentioned provision allows such evidence if it is justified by serious inconvenience or where the costs are dispro-portionate to the value of the matter in dispute. A request for hearing witnesses should not be addressed to another court if a distance between the place of resi-dence and the place where the court has its seat does not exceed 50 km, unless the witnesses should be present during scene examination or they cannot appear at court due to obstacles that are difficult to overcome (such as severe disease) (§ 100 of the Rules of court of law). According to the Rules of procedure of the courts of law (Regulamin urzędowania sądów powszechnych) an instruction to take evidence given by a labour court or labour and social insurance court should be complied with immediately, not later than within 14 days of the date of receipt of such instruction (§ 102 Rules of procedure of the courts of law). However, the

218 See: S. Waltoś (ed.), Świadek w procesie sądowym [A witness in a trial], Warsaw 1985, p. 327 ff.219 See a judgment of a Court of Appeal in Katowice of 7.5.2008, I ACa 292/08, Legalis.220 J. Turek, Czynności… [Evidentiary…], p. 90.

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time-limit laid down in the mentioned provision is only indicative221 and often it is not observed.

The witnesses’ testimonies, after they are written down in the minutes, should be read and, if necessary, supplemented or corrected. A witness may not leave the court without consent of the presiding judge222.

10.4. Evidence from expert opinionsIf clarification of facts requires expertise, a court may decide to admit expert

witness evidence. In labour law matters such evidence is taken primarily to estab-lish the circumstances concerning health condition in matters involving demands for compensation in relation to accidents at work. Both the courts appointing ex-pert witnesses and the expert witnesses themselves make mistakes and therefore it is useful to draw attention to the rules developed by the judiciary and the juris-prudence which should be followed in taking the evidence:– an expert witness is appointed in a situation where expertise is required. In the

reasoning of the judgment of 18.7.1975 the Supreme Court pointed out that it means „knowledge which goes beyond the knowledge possessed by all intel-ligent and generally educated persons”223,

– it is not the expert witness himself to decide what is the basis of his opinion224,– the expert opinion should include three parts: report of the activities and

observations, conclusions of the expert witness and response to the questions asked to the expert witness, the reasoning225,

– the expert opinion must in each case state the reasons. A determination based on the opinion which does not state the reasons is defective and this may be the grounds for review under Art. 368 (5) KPC. It is because a court is not bound by the expert opinion and should evaluate it in accordance with the general rules. Therefore, a court cannot merely rely on the conclusions included in the opinion but it is obliged to examine on what grounds the expert based his opinion and review the correctness of his reasoning226,

221 J. Ćwik-Bielińska et al., Regulamin urzędowania sądów powszechnych. Komentarz [Rules of procedure of the courts of law. Commentary], Warsaw 2013, p. 67.

222 M. Cieślak, Podstawowe zagadnienia protokołów w procesie cywilnym i karnym [Minutes in civil and criminal proceedings], PiP 1995, No. 10, p. 585.

223 See I CR 331/75, Legalis.224 K. Piasecki, [in:] K. Piasecki (ed.), Kodeks postępowania cywilnego. Tom I. Komentarz [Code

of Civil Procedure. Volume I. Commentary], Warsaw 2006, p. 1108.225 K. Kołakowski, [in:] K. Piasecki (ed.), Kodeks postępowania cywilnego. Tom I. Komentarz

[Code of Civil Procedure. Volume I. Commentary], Warsaw 2006, p. 1117.226 See a judgment of the Supreme Court (SN) of 22.1.1976, I CR 917/75, Legalis.


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– the expert opinion should state the reasons which should be presented in a manner which is clear and understandable also to persons without expert knowledge (Art. 278 § 1 KPC in connection with Art. 286 § 1 KPC)227,

– the opinion must first of all specify and clarify in a comprehensive manner the rationale behind the presented conclusions228,

– if the opinion lacks description of the research activities performed by the expert, this should be considered its defect; it should be a presentation of: how, on what grounds, on the occasion of what research the expert witness made his observations, as well as what research method was adopted by the expert”229,

– each opinion, in the part relating to examination of a causal link, should end with a clear conclusion – acceptance of a causal link with a probability bor-dering on certainty or other. In a situation where the evidence does not allow any of the abovementioned conclusions in the opinion, the expert witness can only conclude that on the basis of the presented evidence no causal link can be accepted or rejected230,

– the opinion should be exhaustive, therefore it should refer to all facts to be es-tablished (the so-called teza dowodowa) specified in a decision of the court231,

– the reasoning should be clear and sufficiently precise to allow verification whether the line of reasoning conforms with the logic and the contents of the materials which were the basis for the motion232,

– the role of the expert witness is not to establish facts but to explain and allow the court to clarify the circumstances with the expertise of such expert, taking into account the collected and submitted evidence233,

– the court is obliged to admit evidence from other expert witness opinions or opinions of an institute when needed, that is when the already submitted

227 See a judgment of the Supreme Court (SN) of 29.7.1999, II UKN 60/99, OSNAPiUS 2000, No. 22, item 831.

228 See a judgment of the Supreme Court of 3.11.1976, IV CR 481/76, OSN 1977, No. 5–6, item 102, as well as K. Piasecki, Kodeks Postępowania Cywilnego. Tom I, Komentarz do artykułów 1–50514

[Code of Civil Procedure. Volume I. Commentary to Articles 1–50514], Warsaw 2006, p. 1118.229 S. Kalinowski, Biegły i jego opinia [An expert witness and his opinion], Warsaw 1994, p. 204.230 S. Kowalski, J. Składzień, Opiniowanie w sprawach cywilnych i karnych jako problem w prak-

tyce biegłego [Expert opinions in civil and criminal matters and expert witness practice], Otorynolaryn-gologia 2004, 3 (3), p. 97-99.

231 K. Kołakowski, [in:] K. Piasecki (ed.), Kodeks postępowania cywilnego. Tom I. Komentarz [Code of Civil Procedure. Volume I. Commentary], Warsaw 2006, p. 1118.

232 S. Kalinowski, Biegły… [An expert…], p. 207.233 See a judgment of the Supreme Court (SN) of 11.7.1969, I CR 140/69, OSNP 1970, No. 5,

item 85.

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opinion displays serious deficiencies or fails to clarify the relevant circum-stances234.

10.5. Evidence from hearing of the partiesThe evidence from hearing of the parties is ancillary evidence235. It should be

taken if, after other evidence was exhausted or in the absence of such evidence, certain facts relevant to the case concerned remain unresolved. Therefore, such evidence may be admitted only where the circumstances relevant to the case can-not be clarified through other evidence236. In a situation where all the relevant circumstances were clarified not only with testimonies of witnesses but also with documents, such as for example files of misdemeanor courts, then taking the evidence from hearing of the parties by the court is unnecessary or even unac-ceptable237. Establishment of facts only on the basis of statements of a party, with the exclusion of other evidence, constitutes breach of procedural laws which may significantly affect the outcome of the case (Art. 3931 (2) KPC)238.

Parties may be heard about different facts. A court may also hear one party only, however, provided that hearing of the other party is not possible. If only one party is heard in a situation when hearing the other party was possible, it is in breach of the principle of equal treatment of the parties239.

The above principle of the ancillary nature of evidence obtained from hear-ing of the parties in labour law matters is subject to restrictions. According to Art. 473 KPC in such matters the provisions which provide for restrictions of admissibility of evidence from hearing of parties only, including to some extent the provisions of Art. 302 § 1 KPC, do not apply. Therefore, it may be assumed that in labour law matters hearing of only one party is admissible, regardless of whether hearing of the other party is possible or not240.

Most often, restriction of the evidence to hearing one party only will take place when the other party requests that such evidence be not taken (the so-called waiver of the evidence from hearing as a party – zrzeczenie się dowodu

234 See a judgment of the Supreme Court (SN) of 15.2.1974, II CR 817/73, Legalis.235 S. Hanausek, Dowód z przesłuchania stron w procesie cywilnym [Evidence from hearing of the

parties in civil proceedings], Studia Cywilistyczne 1971, vol. XVII.236 A. Zieliński, Postępowanie cywilne. Kompendium [Civil Procedure. A compendium], Warsaw

2012, p. 152. 237 See a judgment of the Polish Supreme Court (SN) of 18.8.1982, I CR 258/82, Legalis.238 See a judgment of the Supreme Court (SN) of 22.11.1996, II UKN 14/96, OSNAPiUS 1997,

No. 12, item 222.239 See a judgment of the Supreme Court of 8.2.2002, II CKN 672/00, Legalis.240 M. Cholewa-Klimek, Postępowanie sądowe w sprawach z zakresu ubezpieczeń społecznych

[Judicial proceedings in social insurance matters], Warsaw 2006, p. 173.


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z przesłuchania w charakterze strony). If the employer is an organisational unit, a person or persons who are members of the governing body authorised to rep-resent such unit may be heard as a party241. I do not share the view that persons representing an employer in labour law matters referred to in Art. 31 KP242 can be heard as a party.

In the event of uniform joint participation (współuczestnictwo jednolite) tak-ing the evidence in the form of hearing of the parties does not require hearing all the persons who act as a party in the case concerned243.

10.6. Evidence from audio and video recordingand transmitting equipment

Because of the developing use of CCTV in the workplace244, there is a growing trend to use as evidence in labour law matters the recordings from CCTV cam-eras or phone call recordings. Such evidence is called evidence from audio and video recording and transmitting equipment. Recently it has become quite com-mon that employees submit as evidence the recordings of conversations record-ed without knowledge and consent of the recorded person. Both in the case-law and in legal writings there is no uniform standpoint regarding the possibility to include such recordings as evidence245. According to some opinions, a deceitful recording of a private conversation undermines constitutional principles of free-dom to communicate and protection of communication, therefore, the unlawful-ly obtained evidence, in principle, should not be admitted in civil proceedings246. On the other hand, there is another opinion expressed in the case-law according to which there are no essential reasons for an absolute disqualification of evidence obtained from recording of a telephone conversation questioned by the defendant, even if such recordings were made without the knowledge of one of the persons in the conversation247. I think that also the evidence obtained unlawfully should not be ex ante excluded from the body of evidence but should be evaluated in accord-

241 W. Skierokowska, O udziale osoby prawnej w dowodzie przesłuchania stron [Participation of legal persons in hearing of the parties], NP 1961, No. 6, p. 44.

242 A different opinion: K.W. Baran, Procesowe… [Procedural…], p. 268–269.243 See a judgment of the Supreme Court of 23.2.1999, I CKN 1017/97, Legalis.244 See: M. Wujczyk, Prawo pracownika do ochrony prywatności [The employee’s right to protec-

tion of privacy], Warsaw 2012, p. 308–322.245 R. Krawczyk, Nagranie jako materiał dowodowy [Recording as evidence], MoPr 2012, No. 12,

p. 641–642.246 See a judgment of a Court of Appeal in Poznań of 10.1.2008, I ACA 1057/07, OSA 2009,

No. 11, p. 56–71; M. K rakowiak, Potajemne nagranie na taśmę jako dowód w postępowaniu cywilnym [Secret tape recording as evidence in civil proceedings], MoP 2005, No. 24, p. 1250–1253.

247 See a judgment of the Supreme Court of 25.3.2004, IV CKN 94/01, PS 2004, No. 12, p. 156.

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ance with the rule of free assessment of evidence laid down in Art. 233 § 1 KPC. As part of this assessment of evidence in the civil procedure (a little different than in the criminal procedure) a court may also take a position regarding the value of unlawfully obtained evidence248.

In the context of the employee-employer relations, worth noting is a stand-point presented by the Supreme Court according to which protection of private affairs works both ways, therefore it applies not only to the employee but also to the employer and his company. Recording conversations without employer’s consent may constitute grounds for termination of a contract of employment249.

10.7. Evidence from case file In the civil proceedings there is no separate evidence from case file (dowód

z akt) (only Art. 224 § 2 KPC uses an expression „...when evidence from case file is to be taken”). In the practice of examination of labour law matters parties quite frequently file a motion to take „evidence based on case file”, for example in a situation where the procedure before a labour court is a result of criminal pro-ceedings initiated against the employee (for example in the case of appeal against termination of a contract of employment linked to commission of a crime by an employee). However, it should be noted that only specific documents included in the files of another case may be considered evidence250. Therefore a party who requests taking such evidence should point out specific documents which should be integrated by the court into the body of evidence. The provisions of the Code of Civil Procedure do not provide for the evidence from the files of a criminal case. It is only possible to admit as evidence certain documents included in the files of another case since Art. 244 KPC et seq. of the Code of Civil Procedure provide only for documentary evidence and not evidence based on files of an-other case. Without prejudice to the principle of direct adduction of evidence laid down in Art. 235 KPC, it is only possible to admit evidence from particular, specified documents251.

248 J. Turek, Czynności… [Evidentiary…], p. 122–134; E. Wengerek, Korzystanie w postępowaniu cywilnym ze środków uzyskanych sprzecznie z prawem [Use of illegally obtained evidence in civil proceedings], PiP 1977, No. 2, p. 33 ff.

249 See a judgment of the Supreme Court of 24.5.2011, II PK 299/00, OSNP 2012, No. 13–14, item 170.

250 See a decision of the Supreme Court of 26.11.1998, I CKN 900/97, Legalis. 251 See a judgment of the Supreme Court of 30.5.2008, III CSK 344/07, Legalis.


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Admission of evidence from minutes of testimonies given in another case by witnesses whose examination is not possible does not infringe the principle of direct adduction of evidence252.

Following the evidentiary procedure, the court should perform the free as-sessment of the collected evidence. The limits of free assessment of evidence will be established by logical, statutory and ideological factors253.

§ 11. A simplified procedure in labour law matters

D. Książek

The provisions governing the simplified procedure apply, in extenso, in labour law matters. An amendment of 2.7.2004 which added Art. 505(14) to the Code of Civil Procedure KPC ended a dispute in the literature and jurisprudence con-cerning application of the provisions on simplified procedure to the proceedings in labour law matters254. In this article the legislature indicates, expressis verbis, which provisions governing the separate procedure in labour law matters do not apply in the simplified procedure. A contrario, all other provisions are applicable.

Prima facie, the objectives which are inherent to the analysed separate pro-cedures contradict each other. On one hand, there is a simplified procedure de-signed to simplify and expedite examination in the civil procedure of unprob-lematic cases, as well as cases in which the value of the matter at issue is low. Such procedure is more unified as regards the form of pursuance of claims be-cause of the introduction of official forms, as well as a number of mechanisms to discipline the parties and simplify the course of the procedure255. On the other hand, the proceedings in labour law matters are directed towards par excellence

252 See a judgment of the Supreme Court of 15.10.2009, I CSK 238/09, OSNIC 2010, No. C, item 68.

253 J. Turek, Czynności… [Evidentiary…], p. 107.254 Such possibility, with some differences, was supported among others by K.W. Baran, Pro-

cesowe… [Procedural…], p. 241; A resolution of the Supreme Court of 6.3.2003, III PZP 2/03, OSNP 2003, No. 1, item 30 with a critical commentary of P. Telenga. Arguments against it were presented among others by P. Telenga, Roszczenia z zakresu prawa pracy w postępowaniu uproszczonym – glosa III PZP 2/03 [Labour law claims in the simplified procedure – commentary III PZP 2/03], MoP 2005, No. 7, p. 356 and following; E. Manowska, Postępowanie odrębne… [Separate procedure…], p. 16 ff. The analysis of the debate was presented also by M. Mędrala in: Funkcja ochronna… [The protective function...], p. 276–280.

255 K. Flaga-Gieruszyńska, argument 1, commentary to Art. 505¹ KPC, [in:] A. Zieliński (ed.), Kodeks postępowania cywilnego. Komentarz [Code of Civil Procedure. Commentary], Warsaw 2012.

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clarification of a case256, assuming also the rapidity of the procedure, but with a clear emphasis on establishing truth by the court at the expense of the proce-dural formalism.

As I have noted earlier, de lege lata, provisions governing the simplified pro-cedure are in extenso coherent with the provisions governing the separate pro-cedure in labour law matters. A guarantee of achievement of the objectives of both of these procedures is Art. 505 (7) KPC which explicitly provides that a case should be heard by a court if it is particularly complex or where resolution of the case call for specific information, excluding the provisions on the simplified pro-cedure. With this regulation the legislature removes the restrictions imposed un-der the provisions of Art. 505(14) KPC and therefore guarantees that the purpos-es of the simplified procedure will not be in conflict with the purposes assumed by the legislature for the separate procedure in labour law matters257.

As regards the subject-matter of the simplified procedure, what can be ob-served prime facie, is its fiscal nature. A party pursuing contractual claims not exceeding PLN 10 000 should bring an action in a simplified procedure. In la-bour law matters the basis of such claim, pursuant to the lege non distinguente principle, may be not only a contract of employment or a cooperative contract of employment (spółdzielcza umowa o pracę) but also contracts or agreements sub-sidiary to these contracts such as for example a non-compete agreement (umowa o zakazie konkurencji). However, the simplified procedure will not apply in the case of claims arising from the employment relationships based on nomination, appointment and election258.

Unlike in the case of the full proceedings in labour law matters governed by the provisions of Section III of the Code of Civil Procedure, in matters heard in the simplified procedure the provisions enabling an employee not represented by a professional attorney to file a statement of claim, appeal and other pleadings orally in the minutes will not apply. This was explicitly stipulated in Art. 505(14) KPC by excluding the application of, among others, Art. 466 KPC.

According to Art. 505² KPC, a statement of claim, a statement of defence, an application to set aside a default judgment and a pleading including a motion for evidence, should be filed on official forms. Sample pleadings are available free of charge in all district and regional courts, as well as on the website of the Minis-try of Justice and websites of general courts259. This provision does not apply to

256 M. Mędrala, Funkcja ochronna… [The protective function...], p. 278–279.257 See: M. Mędrala, Funkcja ochronna… [The protective function...], p. 282.258 Ibidem, p. 278.259 The official model forms are laid down in the Regulation of the Minister of Justice of 5.4.2012

on the model forms and the method of provision of official forms of pleadings in the civil procedure, Journal of Laws [Dz.U.] of 2012, item 450.


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all cases of obligatory filing of pleadings in simplified procedure on the official forms260. In a situation where a statement of claim was filed on the official form in one of the order for payment procedures – either this set out in Art. 484–497 (postępowanie nakazowe) or this set out in Art. 497 – 505 (postępowanie upom-inawcze) of the Polish Code of Civil Procedure (KPC), then raising pleas and lodging a statement of opposition requires the same form. This rule is explicitly laid down in Art. 493 § 2 and Art. 503 § 2 KPC.

The penalties for failure to comply with the obligations set out in the men-tioned provisions may, in concreto, be very severe to a party. According to Art. 130¹ § 1¹ and § 2 KPC, if a pleading which should be filed on the official form was not filed on such form or cannot be properly pursued as a result of fail-ure to meet other formal conditions, the presiding judge will call upon a party to correct or supplement it within one week by sending the submitted plead-ing. The call should indicate all defects of the pleading and include instructions regarding the contents. If the party fails to correct or supplement the pleading within the prescribed time-limit or re-submits a defective pleading, the presid-ing judge will order return of the pleading. An application to set aside a default judgment (sprzeciw od wyroku zaocznego), objections against an order for pay-ment (zarzuty od nakazu zapłaty) and opposition against an order for payment (sprzeciw od nakazu zapłaty) will be rejected by the court. A presiding judge should call upon a party to remedy the formal defects of a pleading and should precisely indicate these defects. A pleading addressed to a party should corre-spond with such call. A pleading can be returned (rejected) because of failure to remedy the formal defects within the prescribed time-limit only if the call to rem-edy such defects was properly served261. However, it is worth noting that a plead-ing may be returned or rejected only in the case of failure to remedy the defects which were explicitly indicated by the presiding judge in respective order. If the presiding judge notices, in concreto, other defects in the pleading, not mentioned in the original call to remedy, he should send another call to remedy the defects or deficiencies in a manner specified in Art. 130¹ KPC262.

As regards the mentioned provisions, quite significant is a relation between two directives included in Art. 505² KPC and Art. 254 second sentence of the Labour Code. The former provides that a statement of claim should be filed on an official form while the latter provides that employee’s motion for amicable

260 M. Manowska, Postępowanie odrębne… [Separate procedure…], p. 230. 261 See a decision of the Supreme Court (SN) of 30.7.1998, III CZ 92/98, Legalis, accord-

ing to A. Zieliński, argument 3 of a commentary to Art. 130¹ KPC, [in:] A. Zieliński (ed.), Kodeks postępowania cywilnego. Komentarz [Code of Civil Procedure. Commentary], Warsaw 2012, Legalis.

262 A. Zieliński, argument 4 of a commentary to Art. 130¹ KPC, [in:], A. Zieliński (ed.), Kodeks postępowania cywilnego. Komentarz [Code of Civil Procedure. Commentary], Warsaw 2012, Legalis.

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resolution of a case by a conciliation commission shall replace a statement of claim. There is a view presented in the literature on the subject according to which a court, because of the conflict between the two provisions, must accept the motion submitted by the conciliation commission, despite the fact that it was not filed on an official form referred to in Art. 505² KPC263. I do not share this opinion. It cannot be accepted that the legislature allowed for the existence of a conflict between two provisions which require co-application264. Both Art. 254 KP and Art. 505² KPC are specific provisions which cannot be applied at the same time. In my opinion the existing conflict may be resolved by reference to Art. 130¹ KPC, and by application of argumentum a rubrica principles. The men-tioned provision, because of its place in the structure of the Code of Civil Pro-cedure, applies to all proceedings conducted under the provisions of the Code. It applies also to the simplified procedure initiated upon motion referred to in Art. 254 second sentence of the Labour Code. In fine, a court must accept the motion sent by the commission but at the same time it must apply the provisions of Art. 130¹ KPC and call upon a party – the employee, not the commission – to correct or supplement the pleading within one week and should at the same time send the submitted pleading. In the event of failure to perform this obligation by the employee, the court will order return of the pleading.

In the simplified procedure there applies a rule of one claim (zasada jednego roszczenia) laid down in Art. 505³ § 1 KPC according to which only one claim can be pursued in one statement of claim (the so-called prohibition of material accumulation265 – zakaz kumulacji przedmiotowej). However, this principle is not absolute. Bringing several claims together in one statement of claim is permit-ted only where such claims arise from one and the same contract or from several contracts of the same type. This exception, laid down expressis verbis in § 2 first sentence of Art. 505³ KPC applies in extenso in labour law matters heard in the simplified procedure266. In concreto, a judicial declaration of inadmissibility of accumulation of several claims in one statement of claim results in dismissal of the statement of claim according to Art. 130¹ KPC. It should be emphasized that a condition sine qua non for consideration of a portion of a claim pursued by the

263 M. Mędrala, Funkcja ochronna… [The protective function...], p. 283; R. Frey, Postępowanie uproszczone w sprawach z zakresu prawa pracy [Simplified procedure in labour law matters], Radca Prawny 2001, No. 5, p. 69.

264 L. Morawski, Zasady wykładni prawa [Rules of legal interpretation], Toruń 2010, p. 148 and a decision of 7 judges of the Supreme Court of 17.12.1997, III CZP 47/97, OSNC 1998, No. 5, item 73 referenced there.

265 J. Jankowski, Postępowanie uproszczone w procesie cywilnym [A simplified procedure in civil proceedings], MoP 2000, No. 10, p. 620.

266 See a resolution of the Supreme Court (SN) of 12.11.2003, III PZP 13/03, OSNP 2004, No. 7, item 115.


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plaintiff in the simplified procedure is that such simplified procedure is appro-priate for the whole claim arising from the facts invoked by the plaintiff. Other-wise the case will be examined with the exclusion of the provisions governing the simplified procedure. This was laid down explicitly in Art. 505³ § 3 KPC and ap-plies to substantive claims. This regulation applies to a so-called fragmentation of claims (rozdrabnianie roszczeń)267, for example in a situation where a plaintiff deliberately pursuing only a part of a claim, at such amount so as to allow appli-cation of the simplified procedure, does that to obtain a prejudication268. In my opinion, the above directive may be illustrated with an example of an employee who seeks remuneration for overtime work amounting to PLN 8 000 in a situa-tion where according to the facts presented by the latter the whole claim exceeds PLN 10 000. Provided that the amount of PLN 8 000 is not a remaining portion of unsatisfied claims originally exceeding PLN 10 000 which was satisfied by the de-fendant prior to bringing the action and the case itself is not particularly complex or requiring special knowledge within the meaning of Art. 505(7) KPC. In such situation the said „remaining portion” of the claim not only can but also should be pursued in the simplified procedure269.

In the simplified procedures in labour law matters the change of claim is prohibited. Among others, Art. 194 KPC does not apply. It is therefore logical to exclude application of Art. 477 KPC270 under Art. 505 (14) KPC. However, I take the view that non-exclusion of Art. 477 KPC would not affect its appli-cation or non-application in the simplified procedure with regard to summons of a person to participate in the case. The same effect is produced by exclusion of Art. 194 under Art. 505 (4) KPC which automatically excludes application of Art. 477 first sentence of the Code of Civil Procedure (KPC) which only modi-fies the form of the summons laid down in Art. 194 KPC271. Moreover, the pro-visions which allow the court to perform an initial examination of the case and not to perform the preliminary inquiries were excluded. Both of these constructs governed by Art. 467 and Art. 468 respectively of the Code of Civil Procedure were explicite excluded from the simplified procedure under Art. 505(14) KPC. In concreto, as regards the proceedings in question, the mentioned exclusion is one-directional. Namely, it applies only where an employee is a plaintiff. In a sit-

267 K. Flaga-Gieruszyńska, argument 4, commentary to Art. 505³ KPC, [in:] A. Zieliński (ed.), Kodeks postępowania cywilnego. Komentarz [Code of Civil Procedure. Commentary], Warsaw 2012.

268 M. Manowska, Postępowanie odrębne… [Separate procedure…], p. 224–225.269 See a resolution of the Supreme Court (SN) of 11.2.2005, III CZP 83/04, OSNC 2005, No. 12,

item 207.270 M. Mędrala, Funkcja ochronna… [The protective function...], p. 282.271 A decision of the Supreme Court of 26.7.2005, II PK 79/05, Legalis.

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uation where an employee is a defendant272, the mentioned regulations were ex-plicite excluded already in Art. 477(7) KPC, which, in my opinion, implies their one-directional nature. By excluding the application of Art. 468 KPC govern-ing the conduct of preliminary inquiries, the legislature demonstrated the nec-essary consistence and excluded also the application of Art. 470 KPC which es-tablishes the requirement that a person representing a defendant should know the facts of the case and should have an authorisation to conclude a settlement agreement. This is because the latter provision is strictly subsidiary to the men-tioned Art. 468 KPC.

Moreover, a labour court hearing a labour law matter in a simplified proce-dure cannot take advantage of the possibilities offered by Art. 477 and Art. 477¹ KPC. The said provisions regulate matters relating to judicial assistance to a par-ty and the right of a court to award an alternative claim. In my opinion the non-applicability of these provisions in the simplified procedure – as explicitly stipulated in Art. 505 (14) KPC – and in particular non-applicability of direc-tive included in Art. 477¹ KPC, is not fully justified. Even if the provisions of Art. 477 KPC significantly affect the speed of process, the directive laid down in Art. 477¹ KPC may apply only at the stage of delivery of judgment and in no way affects the temporal aspect of the ongoing proceedings. De lege lata, in such situation the labour court cannot, par excellence, correct the choice of the claim made by the employee. There was also a view presented in the literature accord-ing to which exclusion of Art. 477¹ KPC results in exclusion of application of Art. 45 § 2 KP273.

Under Art. 5056 § 2 KPC the legislature waived application in the simpli-fied procedure of the evidence in a form of expert opinion (Art. 278–291 KPC) which is relatively often used in labour law proceedings, in particular with re-gard to matters concerning payment of wages. Taking such evidence often in-volves high costs and considerable prolongation of the procedure274. A labour court which, in concreto, finds that it is not possible to precisely prove the amount of a claim may award an appropriate amount, at its discretion, taking into account all the circumstances of the case concerned (Art. 5056 § 3 KPC). The mechanism introduced in § 3 of the commented provision extends the

272 See: R. Frey, Pracodawca jako powód w postępowaniu uproszczonym [Employer as a plaintiff in simplified procedure], MoP 2001, No. 5, p. 903.

273 M. Malczyk-Herdzina, Orzekanie bez żądania w postępowaniu odrębnym w sprawach z zakresu prawa pracy [Ruling without a claim in separate proceedings in labour law matters], Studia z zakresu prawa pracy i polityki społecznej 2008, p. 32.

274 J. Jankowski, komentarz do art. 5056 KPC teza 3 [commentary to Art. 5056 Code of Civil Proce-dure, argument 3], [in:] K. Piasecki (ed.), Kodeks postępowania cywilnego. Komentarz [Code of Civil Procedure. Commentary], Legalis/el. 2010.


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scope of application of Art. 322 KPC. Therefore, in the simplified procedure, if the amount of claim cannot be established or is very difficult to establish, one of the principles of jurisdiction will apply which makes reference to discretion of the court. The court’s discretion should not be identified with absolute free-dom275. In concreto, the court is obligated to gather and use all the evidence. A proper application of that provision requires an indication of the facts from which it follows that the amount of the claim cannot be established or is very difficult to establish276.

If the court establishes, in concreto, that the case concerned is particular-ly complex or its resolution requires expert knowledge, it should proceed with the case but not in the simplified procedure. In such event the court may not call upon a party to pay a complementary filing fee in respect of a statement of claim. This is laid down explicitly in Art. 5057 KPC. However, this applies only to a statement of claim filing fee. The above provision is an exception to the rule established in Art. 1303 § 2 KPC, therefore in accordance with the exceptiones non sunt extendendae principle, it should not be interpreted extensively277. Ar-ticle 5057 KPC invokes two conditions. If one of them is met, a case concerned must be pursued with the exclusion of the provisions governing the simplified procedure. On one hand, this applies in a situation where a matter is particu-larly complex and it is a so-called qualified complexity278. On the other hand, this applies if it is necessary to obtain expert knowledge. The latter condition is a guarantee of the exemption provided for in Art. 5056 § 2 KPC. Reclassification of a matter by the court and the resulting inability to hear the case in the original proceedings, is an in futuro change and does not affect the activities already un-dertaken both by the court and the party279.

According to Art. 505(8) KPC, in a simplified procedure a party and, implic-ite, also its representative280 who is present at the sitting at which a judgment is announced, may put a request for a statement of reasons of the judgment on the record (outside the procedure laid down in Art. 328 § 1 KPC), immediately after

275 K. Flaga-Gieruszyńska, komentarz do art. 5056 KPC teza 6 [commentary to Art. 5056 KPC, argument 6], [in:] A. Zieliński (ed.), Kodeks postępowania cywilnego. Komentarz [Code of Civil Pro-cedure. Commentary], Legalis/el. 2012.

276 A judgment of the Supreme Court of 11.12.2007, I PK 157/07, OSNP 2009, No. 3-4, item 33.277 A resolution of the Supreme Court (SN) of 7.10.2008, III CZP 81/08, OSNC 2009, No. 9,

item 119. 278 K. Flaga-Gieruszyńska, komentarz do art. 5057 KPC teza 6 [Commentary to Art. 5057 KPC,

argument 6], [in:] A. Zieliński (ed.), Kodeks postępowania cywilnego. Komentarz [Code of Civil Pro-cedure. Commentary], Legalis/el. 2012.

279 A resolution of the Supreme Court (SN) of 7.10.2008, III CZP 81/08, OSNC 2009, No. 9, item 119.

280 M. Manowska, Postępowanie odrębne… [Separate procedure…], p. 246.

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announcement of the judgment, and moreover the party may, at its discretion waive, in concreto, the right to appeal. However, a condition sine qua non for the judgment to become valid and final at the sitting at which it was announced is that all the entitled parties waive this right. In principle, it is accepted that such special mode of acquisition by a judgment of an authority of a final and valid de-cision results in the lack of possibility of a party to lodge an appeal, for teleologi-cal reasons281. However, it should be emphasized that in labour law proceedings a court could, in concreto, consider such waiver of the appeal unacceptable as af-fecting a legitimate interest of an employee, regarding such waiver as being equal with withdrawal of the appeal. A directive governing withdrawal of an appeal in labour law matters is laid down expressis verbis in Art. 469 KPC282 and in my opinion it applies in simplified procedure with respect to the waiver of the right to appeal. Although it is a specific provision limiting the party’s right to withdraw the already lodged appeal and therefore, in accordance with the exceptiones non sunt extendendae principle, it should not be interpreted extensively, still the ra-tio legis of Art. 469 KPC cannot be disregarded283. Undoubtedly, such ratio legis is the protection of a legitimate interest of an employee which may overcome the mentioned directive and justify the intepretatio extensiva.

For a party who waived the service of reasoning of a judgment, the time-limit for lodging an appeal runs from the date on which the judgment was announced. Implicite, such waiver should also be put on the record, immediately after an-nouncement of the operative part of the judgment284. It seems obvious that all of the abovementioned statements of a party should be made expressis verbis, leav-ing no doubt as to the intention of the party. The party who did not exercise its right to waive the appeal and who lodged such appeal has a limited, as compared to a non-simplified procedure, number of pleas on which such remedy can be based (Art. 505 (9) KPC). Such party may „only” plead infringement of substan-tive law (errores in iudicando) by erroneous interpretation or improper applica-tion or may plead infringement of procedural laws (errores in procedendo), if it might have affected the outcome of the case. If the time-limit for an appeal ex-pires, no other pleas can be invoked.

281 B. Draniewicz, Uproszczone postępowanie gospodarcze w pierwszej instancji [Simplified com-mercial procedure in the first instance], MoP 2003, No. 12, p. 575 and the literature referenced there.

282 A. Wolińska-Uchman, Klauzula słusznego interesu pracownika jako przesłanka dopuszczalności zawarcia ugody [Legitimate worker’s interest as a condition for admissibility of a settlement agreement], MoPr 2012, No. 4, p. 190–192.

283 A decision of the Supreme Court of 11.12.2000, I PKN 808/00, OSNAPiUS 2002, No. 16, item 382.

284 J. Jankowski, Postępowanie… [A simplified…], p. 622.


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De lege lata, an absolute rule applicable in the simplified procedure is that the appeal is heard by a single judge (Art. 505 (10) § 1 KPC). If the case, in concreto, was not properly tried by the district court in the simplified procedure, the court of the second instance will have to hear the appeal in accordance with applicable procedural laws. Procedural consequences of defective application of Art. 505 (10) KPC in the appeal procedure are such that it may justify declaration of in-validity of the procedure in question on grounds of unlawful composition of the court (Art. 379 (4) KPC in connection with Art. 367 § 3 KPC), and on grounds of deprivation of the plaintiff of the opportunity to defend his rights before a court of appeal285. However, a procedure will not be declared invalid in a situation where a labour court of the second instance hears the case with the exclusion of the provisions governing the simplified procedure (which case was referred un-der Art. 505 (7) KPC to separate proceedings in labour law matters) if the court of the first instance did not issue a respective order286.

A relative principle is that an appeal is heard at a closed sitting. The relativ-ity is that if a party demands, in the appeal or in the response to the appeal, that a hearing be held, the court is obliged to schedule and conduct such hearing (Art. 505 (10) § 2 KPC). Implicite, the court is not obliged to inform the parties of a sitting held in camera287.

Another relative principle is that a court does not take evidence, except documentary evidence. Such principle does not apply in a situation where the appeal was based on a later discovery of facts or evidence, provided that a party was unable to make use of them before a court of the first instance (Art. 505 (11) KPC).

According to a directive laid down in Art. 505 (12) KPC, if the court of the second instance establishes infringement of substantive law, in the absence of evidence which would provide sufficient grounds for change of the judg-ment, the contested judgment should be repealed and the case should be re-manded. When repealing the contested judgment the court of the second instance may remand the case with the exclusion of the provisions on the sim-plified procedure also where the case concerned, pursuant to Art. 5051, may be heard in the simplified procedure. In a situation where despite violation of sub-stantive laws or procedural laws or despite incorrect reasoning the judgment under appeal is in compliance with law, the court of the second instance will dismiss the appeal.

285 A judgment of the Supreme Court (SN) of 25.3.2009, V CSK 380/08, Legalis.286 A judgment of the Supreme Court of 25.9.2008, II PK 45/08, OSNP 2010, No. 5–6, item 59.287 A decision of the Supreme Court of 20.6.2012, I CZ 41/12, Legalis.

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The element of „simplification” is visible also at the stage of drafting the rea-soning288. A court of the second instance should ex officio provide reasons only for the judgment repealing the contested judgment and remanding the case to the court of the first instance. Therefore, it is a judgment addressed both to the par-ties and to the court of the first instance. The reasoning of the judgment is also drafted, not on the court’s own motion but on a motion of a party filed within one week of the announcement of the judgment or of service of the judgment upon the party if the judgment was not announced. If the court of the second instance did not conduct the evidentiary procedure, the reasoning of the judgment should include only an explanation of a legal basis of the judgment, including citation of respective laws (Art. 505 (13) KPC).

§ 12. A judgment and delivery of judgments in labour law matters

D. Książek

Civil proceedings are a set of procedural activities and decisive acts aimed at substantive resolution of a case heard by a court. The procedural activities mean all activities undertaken by judicial authorities in a particular litigation, which may produce certain consequences in the course of such litigation. The most sig-nificant form of these activities are decision-making activities. The consequenc-es of the decision-making acts of a court, apart from resolution on the merits, are anchored in the framework of a specific case. The procedural acts of a court which take a form of decisive acts may be divided into (1) orders (zarządzenia) and (2) rulings (orzeczenia). The latter may be classified into judgments (wyroki) (including orders for payment – nakazy zapłaty – either this set out in Art. 484 – 497 (postępowanie nakazowe) or this set out in Art. 497–505 (postępowanie upominawcze) of the Code of Civil Procedure), decisions (postanowienia) and resolutions (uchwały)289. In this chapter I will focus on a judgment (wyrok) as a primary court ruling.

288 M. Śladkowski, G. Matusik, Budowa uzasadnienia wyroku sądu odwoławczego w postępowaniu uproszczonym [Reasoning of a judgment of a court of appeal in simplified procedure], MoP 2008, No. 22, p. 1231–1232; M. Manowska, Postępowanie odrębne… [Separate procedure…], p. 259–260.

289 A. Zieliński, Postępowanie cywilne… [Civil procedure…], p. 180. See also: K. Piasecki, Wyrok sądu pierwszej instancji w procesie cywilnym [A judgment of a court of the first instance in civil pro-ceedings], Warsaw 1982, p. 47 ff.


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The ideal civil proceedings should serve the major purpose that is delivery of a judgment290. Following the end of the hearing a court delivers a judgment on the basis of a state of affairs existing at the time when the hearing was closed (Art. 316 § 1 in principio KPC). According to a general principle applicable in the civil proceedings – ne eat ultra petita partium – a statement of claim is binding upon the court. This means that the subject-matter of the ruling should comply with the subject-matter of the litigation291. It is connected with one of the funda-mental principles of civil procedure and complements the principle of disposi-tiveness, and the adversarial principle292. The said principle, laid down in Art. 321 § 1 KPC, was expressed in negative terms as it specifies what a court must not do. Accordingly, a court must not rule on the subject which is not within the scope of the statement of claim or rule over and above the claim. The prohibition to rule over and above the claim (orzekanie ponad żądanie) may refer to the claim itself – petitum, or to the underlying facts – causa petendi. The prohibition to rule over and above the claim which is a reflection of the principle of dispositiveness and the adversarial principle, means that it is a demand of the party which is decisive for the judgment, both in positive and negative terms. A court may not award anything different from what was demanded by the plaintiff – aliud, anything in excess of what was demanded by the plaintiff – super, or on a legal basis other than this indicated by the plaintiff. Therefore, the prohibition to rule over and above the claim refers either to the claim itself – petitum, or to the facts underly-ing such claim – causa petendi293.

Derogations from this principle are possible in matters involving claims aris-ing out of employment relationship294, directly through Art. 477¹ KPC (it applies only to proceedings in labour law matters) and indirectly through Art. 322 KPC (possible, among others, in the proceedings in labour law matters). Article 477¹ KPC provides that if an employee selected one of his alternative claims and the claim raised proves to be unjustified, a court may, ex officio, allow another claim. The mentioned provision introduces a mechanism of protection of an employee and refers to a situation where the employee has at least two claims and satis-faction of one of these claims results in fulfilment of the obligation imposed on the employer in the proceedings concerned295. There are arguments presented

290 K. Piasecki, Wyroki sądów pierwszej instancji, sądów apelacyjnych oraz Sądu Najwyższego w sprawach cywilnych, handlowych i gospodarczych [Judgments of the courts of the first instance, the courts of appeal and the Supreme Court in civil and commercial matters], Warsaw 2007, p. 15 ff.

291 A. Zieliński, Postępowanie cywilne… [Civil procedure...], p. 181.292 Ibidem, p. 491.293 A judgment of the Supreme Court of 9.2.2012, I PK 95/11, Legalis; see also: A judgment of

the Supreme Court of 18.5.2010, III PK 73/09, Legalis. 294 A. Zieliński, Postępowanie cywilne… [Civil procedure...], p. 182.295 K.W. Baran, Procesowe… [Procedural…], p. 272.

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in the literature that the wording of Art. 477¹ KPC currently in force is a spe-cific compromise between the previous and the current regulation which sig-nificantly restricts the excessive paternalism, to ensure better application of the adversarial principle (audi alteram partem) in labour law matters. The said pro-vision should not be read in correlation with the provisions of substantive law, and a specific condicio sine qua non of a directive included in it is the existence of two or more alternative claims on the part of the employee, where a selection (made by the court in the case of unreasonableness of the claim selected by an employee) and satisfaction of one of them by the employer will result in extin-guishment of the obligation296. It is worth noting that interpretation of Art. 477¹ KPC leads to disputes in the literature concerning the nature of the expression „a court may” used in that article. Some scholars argue that this expression im-plies an optional nature of the provision297. Others, despite the literal wording, argue that it implies an obligation298. Prima facie, the former standpoint is jus-tified as it is based on the literal interpretation. However, it is difficult to ac-cept that such interpretation is complete. The expression „a court may” means an obligation to make use of the „possibility” established in Art. 477¹ KPC, in a situation where a claim selected by the employee is unfounded. Therefore, the court has no possibility to deny an alternative claim. This refers to such stage of decision-making where a court finds that the action brought is founded but the claim selected by the employee is unfounded. While the directive laid down in Art. 477¹ KPC explicitly refers to the situations where an employee who has two alternative claims selects a claim which, in concreto, is considered unmeri-torious by the court.

In the context of the analysed provision, it should be decoded whether the claim considered alternative within the meaning of Art. 477¹ KPC, should be for-mally raised by the employee. The Supreme Court rightly held that299 employee’s failure to do so does not mean that award of an alternative claim which was not in principio raised by the employee should be considered ruling over and above the claim (orzekanie ponad żądanie) within the meaning of Art. 321 KPC. More-over, this is one of the two cases when a court may award a claim alternative to

296 M. Mędrala, Funkcja ochronna… [The protective function...], Warsaw 2011, p. 248 and 249 and a resolution of the Supreme Court of 25.2.1999, III ZP/34/98, OSNAPiUS 2000, No. 2, item 44 referenced there.

297 For example: M. Mędrala, Funkcja ochronna… [The protective function...], p. 249 and R. Golat, Zgłoszanie przez pracownika alternatywnych roszczeń [Submission of alternative claims by an em-ployee], Sł. Prac. 2010, No. 6, p. 30.

298 T. Liszcz, Prawo pracy [Labour Law], Warsaw 2011, p. 487.299 A judgment of the Supreme Court of 2.12.2010, II PK 131/10, Legalis.


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this raised by the employee under Art. 477¹ KPC300. The second one is based on Art. 477¹ KPC in connection with Art. 8 KP.

A substantive equivalent of the directive laid down in Art. 477¹ KPC, i.e. award of an alternative claim by a labour court (which constitutes a derogation from a principle of choice of a claim by an employee under Art. 45 § 1 KP and Art. 56 § 1 KP), is Art. 45 § 2 KP and Art. 56 § 2 KP respectively. This refers also to the persons who are subject to specific protection against termination of em-ployment specified explicite in Art. 45 § 3 KP, Art. 50 § 5 KP, Art. 45 § 3 KP, by reference to Art. 177 and Art. 39 KP, and, implicite, by reference to other persons who are subject to special protection mentioned above under laws specific to the Labour Code in a situation where reinstatement is not possible because of a dec-laration of bankruptcy or liquidation of the employer301. A common denomina-tor of the mentioned cases is that a labour court awards an alternative claim spec-ified explicite in the substantive law, with no need to make reference to Art. 477¹ KPC302. Ruling against the will of an employee is an exceptional situation and it is not unlimited. A court may use such possibility only after a proper evidentiary procedure and a thorough analysis of its results303. Deprivation of trade union activists of a greater protection of sustainability of employment relationship as a result of application of Art. 8 KP and Art. 477¹ KPC, requires precise and con-vincing arguments304. Therefore, a claim for a paid time-off and a claim for un-paid time-off are two different claims which are not alternative within the mean-ing of Art. 477¹ KPC305. Similarly, a claim for compensation under the provisions of the Civil Code is not alternative to a claim for remuneration for a period of unemployment306. The provisions of Art. 477¹ KPC, through Art. 383 KPC, do not apply in the appeal proceedings307. In a situation where a court of the second instance amended the contested judgment of a court of the first instance and in-stead of awarding reinstatement with remuneration for the period of unemploy-ment it awarded a compensation for unlawful termination of an employment re-lationship, the cassation appeal is allowed308.

300 R. Golat, Zgłaszanie przez pracowników… [Submission of alternative claims by employees…], p. 29.

301 M. Mędrala, Funkcja ochronna… [The protective function...], p. 249–250.302 A resolution of the Supreme Court of 30.3.1994, I PZP 40/93, OSNCP 1994, No. 12, item 230

and a judgment of the Supreme Court of 25.2.2009, II PK 181/08, Legalis.303 A resolution of the Supreme Court of 25.2.1999, III ZP34/98, OSNAPiUS 2000, No. 2, item 44.304 A judgment of the Supreme Court of 20.1.2011, I PK 112/10, Legalis.305 A judgment of the Supreme Court of 10.3.2010, II PK 266/09, Legalis.306 A judgment of the Supreme Court of 16.1.2009, I PK 138/08, OSNP 2010, No. 15–16, item 184.307 A. Zieliński, Postępowanie cywilne… [Civil procedure...], p. 182. 308 A decision of the Supreme Court of 6.5.2011, III PZ 3/11, Legalis.

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In terms of labour law matters, particularly important is the rule to award an appropriate amount. This refers in particular to the cases when a matter in dispute is remuneration for overtime work which very often, in concreto, is very difficult to prove with regard to a specific amount claimed. And in such cases, pursuant to Art. 322 of the Code of Civil Procedure, the court which finds that it is not possible to precisely prove the amount of a claim may award an appropri-ate amount, at its discretion, taking into account all the circumstances of the case concerned. This rule may be applied only in such matters which relate to com-pensation for damage, earnings or return of unjust enrichment. The provisions of Art. 322 KPC apply only to the facts and not to substantive part of a judgment (substantive law as the basis for resolution). The above provision does not sub-stitute the fundamental principles of the evidentiary procedure309. The plaintiff is not obliged to precisely specify the demand and the underlying facts pursuant to Art. 187 § 1 KPC310. The rule to award an appropriate amount within the mean-ing of Art. 322 KPC applies not only to the remuneration for overtime work but also in the case of disputes regarding bonuses311, remuneration for doctor’s duty hours312 or damage in the entrusted property under Art. 125 KP313.

The „state of affairs” means both the facts of the case and the legal provi-sions which are the basis for the court’s decision. Given the fact that Art. 316 § 1 KPC applies also to the appeal procedure, the court of the second instance must take into account the changes in the factual and legal circumstances of the case which may affect the content of the court’s decisions. If the court fails to comply with the abovementioned directive, it will breach the provisions of Art. 316 § 1 KPC314. When we talk about change of legal status, then most often, as a result of the lex retro non agit principle, it is associated with change of procedural laws315. As regards the factual circumstances, it should be emphasized that facts should be provided by the parties and the court is responsible for their legal assessment in accordance with the principle facta probantur, iura novit curia316. In the event of continuous activities of the employer (such as workplace mobbing), the events relating to the case in question which occurred between the date when the action

309 A decision of the Supreme Court of 25.7.2012, II PK 72/12, Legalis.310 A judgment of the Supreme Court of 27.4.2008, II PK 289/07, OSNP 2009, No. 17–18, item

227.311 A judgment of the Supreme Court of 22.11.2001, I PKN 691/00, OSNP 2003, No. 21, item 513.312 A judgment of the Supreme Court of 7.8.2001, I PKN 730/00, OSNAPiUS 2002, No. 6, item

141.313 A judgment of the Supreme Court of 12.5.1981, IV PR 107/81, Legalis.314 A judgment of the Supreme Court of 18.1.2012, II UK 117/11, Legalis.315 A. Zieliński, Postępowanie cywilne… [Civil procedure…], p. 186.316 See: M. Kuryłowicz, Słownik terminów, zwrotów i sentencji prawniczych łacińskich oraz po-

chodzenia łacińskiego [The glossary of Latin legal terms and expressions], Warsaw 2012, p. 115.


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was brought and the date of delivery of a judgment should be taken into account by the labour court in deciding the case317.

Prima facie, the „moment when the hearing is closed” is when the court ends the hearing and delivers a judgment. However, given the fact that a court very often makes use of the possibility to adjourn announcement of a judgment, in fine the „state of affairs” should refer functionally not to the „moment when the hearing is closed” but to the „moment when the judgment is delivered”318. This is happening more and more often, in particular where the parties or the last wit-nesses are heard at the last sitting, before the hearing is closed. As a consequence, the hearing is closed but the court wishing to properly apply the law to the facts will not deliver a judgment at the sitting at which the hearing is closed but will „only” adjourn it.

Delivery of a judgment is preceded by closed deliberations (narada) of the ad-judicating judges. During such meeting the judges discuss on the probative force and reliability of the entire body of evidence. The discussion ends with judges voting on the ruling and the principal reasons of the ruling and with drafting an operative part of the judgment (Art. 324 § 1 KPC). It is important that the as-sessment and the reasoning be logically consistent and coherent319. Voting is conducted in such a way that the presiding judge collects the votes according to the seniority of judges and votes from lay judges are collected by age, start-ing with the youngest and the presiding judge shall vote the last. If a judge rap-porteur is present, he should vote first. A judgment is passed by the majority of votes. In concreto, in the proceedings before labour courts the lay judges have the prerogatives to „outvote” a judge. Consequently, the judge who did not agree with the majority on the voting may, when signing an operative part of the judg-ment, voice a dissenting opinion (votum separatum) and is obliged to substanti-ate it before signing the statement of reasons. The operative part of the judgment is signed by all judges (Art. 324 § 2 and 3 KPC). If the operative part of the judg-ment is not signed, the judgment, in legal and procedural terms, is considered not existing (sententia non existens), even if it has been announced320. The op-erative part of the judgment includes the following: a name of the court, names of judges, reporting clerk, a participating public prosecutor, the date when and the place where the case was heard and the judgment was delivered, names of the

317 A judgment of the Supreme Court of 15.1.2008, III PK 51/07, Legalis. 318 A. Zieliński, Postępowanie cywilne… [Civil procedure…], p. 185–186.319 K.W. Baran, Procesowe… [Procedural…], p. 270.320 A. Zieliński, [in:] A. Zieliński (ed.), Kodeks postępowania cywilnego. Komentarz [Code of Civil

Procedure. Commentary], Warsaw 2012, p. 6; A resolution of the Supreme Court of 26.6.2000, III CZP 29/00, OSN 2001, No. 2, item 25.

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parties and specification of the matter at issue, as well as court’s decision on the demands of the parties (Art. 325 KPC).

According to the provisions of Art. 326 KPC, a judgment should be an-nounced at the sitting at which the hearing was closed. However, where the facts of the case are complex, such as for example in a case regarding remu-neration for overtime work or termination of a contract of employment due to serious breach of employee’s duties, that is where usually the only evidence is testimonies of witnesses, the labour court may adjourn announcement of a judg-ment but only once and for a period of maximum two weeks. Announcement of a judgment is adjourned in a decision which should specify the date of an-nouncement of the judgment which should take place immediately after the hearing is closed. A judgment is announced (read publicly) in open court and if the parties are absent no repeated adjournment is necessary. The judgment may be announced by a presiding judge or by a judge-rapporteur. A judgment is an-nounced by reading its operative part and providing its major reasons. Worth noting are the provisions of Art. 316 § 2 KPC, the consequence of which, in fine, is that a judgment is not announced at the sitting at which, at least originally, the hearing was closed. However, a difference, as compared to the regulation laid down in Art. 326 KPC, is that the reason for that is not the „complexity of facts” but the disclosure of relevant circumstances which were disclosed only after the hearing was closed.

The announcement of a judgment is binding upon the court from the mo-ment of such announcement. An exception to this rule is laid down in Art. 332 § 2 KPC which provides that if a statement of claim is withdrawn before a judg-ment becomes valid and final and before it is challenged and the claim pursued is waived (or, if the defendant agrees, also without such waiver), the court of the first instance will repeal its judgment and will discontinue the proceedings. A condition sine qua non for this (which is particularly significant in labour law matters) is that a labour court must consider such discontinuance admissible. Such regulation, in extenso, plays a protective function to the employee.

Upon request of a party, the labour court will draft a reasoning of the judg-ment. The request should be made within one week from the date of announce-ment of the operative part of the judgment, and if a party was not represented by a professional lawyer (adwokat, radca prawny) and was not present at the an-nouncement of the judgment as a result of deprivation of liberty – from the date of service of the judgment (Art. 328 § 1 in connection with Art. 327 § 2 KPC). In labour law matters, an employee may submit such request orally on the record in accordance with Art. 466 KPC. A delayed request should be rejected in closed sitting. The reasoning of a judgment is drafted also without a request of the par-ty in a situation where the judgment was appealed against within a statutory


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time-limit and an action for annulment of the valid judgment was brought321. The reasoning should be drafted in typescript or in a form of a computer print-out. This should be made by a presiding judge or a judge rapporteur. If drafting the reasoning by the presiding judge o r the judge rapporteur is not possible or meets obstacles the duration of which cannot be foreseen, the reasoning should be drafted by another judge who participated in the delivery of the judgment. If drafting the reasoning is not possible, the president of the court division will make a respective note in the files of the case. A judge is not obligated to pro-vide a reasoning of the judgment to which he issued a dissenting opinion (vo-tum separatum). If, however, in a case heard by one professional judge and two lay judges the dissenting opinion was issued by the presiding judge and none of the lay judges drafted the reasoning, then such reasoning should be drafted by the presiding judge on the basis of the reasons established during the judges’ deliberations322. A properly drafted reasoning should include323 the factual ba-sis of the decision, i.e. specification of facts which the court has deemed to be proven, the evidence on which the court relied upon in its ruling and reasons why the other evidence was considered not credible and without a probative force, as well as the legal basis of the judgment including citation of substantive and procedural laws.

The nature of the claim determines the nature of the judgment324. In a la-bour law matter a court may deliver a judgment awarding a certain benefit, de-claring existence or non-existence of a right or a legal relationship or creating or modifying a right or a legal relationship (for example a judgment under which an employee should be reinstated or which declares that a notice of termination of a contract of employment is ineffective).

A labour court may, ex officio, rectify in the judgment any inaccuracies, spell-ing mistakes, errors in calculation or other obvious mistakes (Art. 350 § 1 KPC). In my opinion, the above provision should be interpreted strictly in terms of the matters covered and extensively in terms of the persons covered. Therefore, it is unacceptable to use in concreto the procedure for rectification laid down in Art. 350 KPC to amend the ruling on the merits325. Similar restrictions apply to the reasoning of the judgment. However, the rectification may in no case re-sult in the amendment of the decision and to a conflict between the reasoning

321 Art. 328 § 1 and 327 § 2 KPC.322 § 87–89 of the Regulation of the Minister of Justice – Rules of procedure of the courts of law

[Rozporządzenie Ministra Sprawiedliwości Regulamin urzędowania sądów powszechnych] of 23.2.2007, Journal of Laws [Dz.U], No. 38, item 249.

323 K.W. Baran, Procesowe… [Procedural…], p. 276.324 Ibidem, p. 273.325 A decision of the Supreme Court of 9.7.2004, III SW 2/04, Legalis.

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and the contents of the judgment326. Because of an extensive interpretation of the personal scope of this provision, a judgment may be rectified also upon re-quest of a party. An argument in favour of such interpretation is a presumption of a „reasonable legislator” which, for example, does not enact laws which are redundant. In such case this might apply to Art. 353 KPC which refers to the le-gal consequences of a party’s motion for rectification. If it were accepted that the rectification can only be made ex officio, a part of Art. 353 KPC would be redun-dant. The motion itself is subject to judicial control on the merits327. Article 350 KPC specifies neither terminus a quo nor terminus ad quem for the submission of such motion. Therefore, it should be accepted that it is allowed at any stage of the proceedings328. The rectification of a ruling as well as a respective motion under Art. 353 KPC does not affect the running of a period prescribed for lodging an appeal against such ruling329.

A court may decide to rectify the judgment in closed session by adding a re-spective note on the original of the judgment and, on request of the parties, also on the copies of the judgment issued to the parties. Further copies and abstracts should be issued as amended in accordance with a decision on rectification. If a case is pending before a court of the second instance, the latter may rectify, ex officio, the judgment of the court of the first instance. The decision on rectifi-cation may be complained against (Art. 394 § 1 (8) KPC). A decision of the court of the second instance on rectification of the judgment which in concreto amends the judgment on the merits is open to challenge by a cassation appeal unless the cassation appeal can be brought in the case concerned330.

If the court did not rule on the entire claim, on the immediate enforceabil-ity or did not include in the judgment an additional ruling which it should have included ex officio, a party may, under Art. 351 KPC, apply to the court to sup-plement the judgment. This regulation applies in a situation where a judgment lacks the elements which should be included in it ex officio by the court but which cannot be ex officio supplemented by the court. Unlike Art. 353 KPC, the above-mentioned provision specifies both the terminus a quo and terminus ad quem for filing such application. A party may – within two weeks from announcement of a judgment, and if the judgment is served ex officio – within two weeks from ser-vice of the judgment – request the court to supplement such judgment. Failure to comply with this time-limit results in rejection of the request331. According to

326 A decision of the Supreme Court of 12.10.2001, III AO 27/01, Legalis.327 A decision of the Supreme Court of 13.4.1982, I PZ 7/82, OSNCP 1982, No. 10, item 155.328 A. Zieliński, Postępowanie cywilne… [Civil procedurę…], p. 191. 329 A decision of the Supreme Court of 21.6.2012, III CZ 33/12, Legalis.330 A judgment of the Supreme Court of 4.11.2010, IV CSK 188/10, OSNC 2011, No. 7–8, item 86.331 A decision of the Supreme Court of 28.11.1989, I CZ 270/89, Legalis.


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Art. 351 § 2 KPC the application to supplement the judgment in the part which relates to reimbursement of costs or immediate enforceability may be processed by the court in closed session. A contrario, in other cases the application should be processed at the hearing. The ruling supplementing the judgment should be passed in a form of a judgment, unless the supplement refers only to costs or im-mediate enforceability. Failure to file the application, in concreto, in accordance with the procedure laid down in Art. 351 KPC does not prevent bringing a new action regarding this claim332.

Attention should be drawn also to interpretation of a text of a judgment. A court which delivered a judgment shall resolve in a decision any doubts con-cerning the text of the judgment (Art. 352 KPC). Although it is the operative part of the judgment and not the reasoning which is subject to the interpreta-tion, still the reasoning may be useful for the interpretation of the operative part. The need for the interpretation may result from the application of incorrect or not sufficiently precise expressions333. A respective decision may be issued by the court in camera.

A ruling in a labour law matter may become immediately enforceable either ex lege by decision of a court. As regards court rulings, these may be issued by the court either on its own motion (ex officio) or upon a motion of a party. On the other hand, the ex officio declaration of immediate enforceability of a judgment may be either optional or obligatory334.

A labour court, ex officio, in accordance with the general rules, will declare a delivered judgment immediately enforceable if it awards a claim admitted by the defendant or where a judgment granting the claim is a default judgment (Art. 333 KPC). Par excellence, as regards ex officio declaration of immediate enforceabil-ity of a judgment, the regulation laid down in Art. 333 KPC is complemented by a specific regulation laid down in Art. 477² KPC. According to the latter, a labour court awarding an amount due to an employee in labour law matters declares the judgment immediately enforceable in the portion not exceeding a full monthly remuneration of the employee. Such wording of Art. 477² § 1 KPC implies that it does not always have to be an amount equal to a monthly remuneration. The above provision explicitly indicates only the upper limit, and does not provide for the obligation to award the maximum amount. The directive laid down in Art. 477² § 1 KPC does not apply to a remun eration awarded conditionally in favour of an employee in the judgment on reinstatement of the employee under Art. 47

332 A judgment of the Supreme Court of 4.11.1966, II PR 436/66, OSNCP 1967, No. 4, item 79.333 A decision of the Supreme Court of 26.10.2004, III AO 9/03, Legalis. 334 M. Mędrala, Funkcja ochronna… [The protective function...], p. 254.

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§ 1 KP335. Moreover, a labour court may, under Art. 333 § 3 KPC, but only upon a motio n, declare a judgment which may be enforced by execution immediately enforceable, if a delay might impede enforcement of the judgment or render it difficult or might cause damage to the plaintiff. Declaring a notice of termina-tion of a contract of employment ineffective, a labour court may also impose on the work establishment an obligation to continue employment of the employee concerned pending delivery of a final judgment. Such motion may be filed by the employee orally on the record (Art. 477² § 2 KPC in connection with Art. 466 KPC). In my opinion, the optionality of these motions implies that in concreto they must be justified by factual circumstances.

In principle, a labour court may subject the immediate enforceability to the condition that the plaintiff lodges an appropriate security. Such possibility is ex-cluded as regards outstanding dues in respect of which the court, ex officio, de-clares the judgment adjudicating such outstanding dues immediately enforceable (Art. 334 in connection with Art. 477² KPC). There may be cases where despite provision of the security specified in Art. 334 KPC the judgment will not be de-clared immediately enforceable. This refers to a situation when there is a risk of irreparable damage in connection with the enforcement of a judgment (Art. 335 § 1 KPC). The term „irreparable damage” should be understood to mean any property or non-property loss which cannot be compensated for by a later recov-ery of sums paid or enforced336. An example of the above may be a situation of an employee who is subject to specific protection and after several years of court proceedings is reinstated and the court awards remuneration for the entire peri-od of his unemployment, which might cause irreparable damage to the employer. However, such situations always require consideration of all circumstances and cannot be generalised. The above restriction does not apply to judgments which award sums payable to an employee insofar as the immediate enforceability is de-clared by the court ex officio.

The immediate enforceability becomes effective upon announcement of the judgment or a decision on immediate enforceability and if the judgment was not announced – upon signature of an operative part of the judgment (terminus a quo). The immediate enforceability expires upon announcement, and if there was no announcement, upon signature of an operative part of the ruling amend-ing or repealing the judgment or the decision on the immediate enforceability of the judgment – to the extent of that amendment or repeal (terminus ad quem). This is governed by Art. 336 and 337 KPC.

335 A resolution of the Supreme Court of 6.3.1986, III PZP/98, OSNCP 1987, No. 1, item 11.336 A decision of a Court of Appeal in Szczecin of 9.8.2011, I Acz 525/11, Legalis.


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The recovery of sums paid is governed by Art. 338 KPC. According to this article, if a judgment which was declared immediately enforceable is repealed or amended, a court, upon motion of the defendant shall decide, in a ruling end-ing the proceedings, on recovery of the sums paid or enforced or on restitution. This does not exclude the possibility to pursue, in separate proceedings, a com-pensation for the damage sustained as a result of enforcement of the judgment. The procedural possibility to seek, in separate proceedings, recovery of the sums paid in favour of the losing party applies only where the winning party has not filed, in the previously ended proceedings, a motion for restitution of the sums paid which for that reason were not the subject of the ruling ending the proceed-ings. However, if such motion is filed by the winning party before the case is end-ed, a court of the second instance is obliged to decide on the merits or supplement the judgment under Art. 351 KPC337. A party who enforces the sums awarded to it in a non-final judgment which was declared immediately enforceable, should be prepared for the reimbursement obligation if its claim is dismissed338.

A judgment is final and valid where there is no appeal or other remedy against it available. If only a portion of the judgment is challenged, the remaining por-tion of the judgment becomes final and valid upon expiration of a deadline for the challenge, unless the court of the second instance may, ex officio, hear the case also in respect of that portion (Art. 363 KPC). The validity (prawomocność) of a judgment is declared upon a motion of a party by the court of the first instance in a closed session and for as long as the files of the case remain in the court of the second instance – by the latter court. The declaration is made by a single judge of the court. A respective decis ion may be issued also by a court referendary (ref-erendarz sądowy).

With respect to a valid and final judgment, the sententia facit ius and res iu-dicata ius facit inter partes principles remain applicable. The former is expressed in Art. 365 § 1 KPC according to which a valid and final judgment is binding not only upon the parties and the court which delivered the judgment but also upon other courts, state authorities and public administration bodies and, where statu-tory provisions so provide, also upon other persons. The binding force of a valid ruling upon the parties within the meaning of Art. 365 § 1 KPC means also a ban on bringing a new lawsuit regarding the facts which were the basis for resolution of the litigation ended in concreto. Therefore, it is not possible to establish differ-ently the occurrence, the course and the assessment of the facts relevant for the legal relationship concerned in the consecutive judicial proceedings between the

337 A decision of the Supreme Court of 12.1.2012, II PZ 36/11, Legalis.338 A resolution of the Supreme Court of 24.3.1967, III PZP 42/66, OSNCP 1967, No. 7–8, item

124.

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same parties even if the subject-matter of these matters was different339. An em-bodiment of the latter directive is Art. 366 KPC which provides that a final and valid judgment has the force of res iudicata only in relation to what was the sub-ject-matter of the judgment and between the same parties. In the case of dismissal of an appeal against termination of employment, if the cause was discriminatory on grounds of age, even because of non-observance of the time-limit laid down in Art. 264 KP, such decision is binding pro futuro in an action before a labour court for compensation under Art. 18³d KP for a discriminatory cause of termi-nation of a contract of employment. This is because the provisions prohibiting discrimination (unequal treatment) are universal, however, violation of such pro-visions must each time be qualified by a specific behaviour of the employer. In concreto, it is inherently connected with the notice of termination and termina-tion of a contract of employment340.

§ 13. Appeal in labour law matters

D. Książek

Each of the parties to labour law proceedings is entitled to challenge a judg-ment and bring an appeal. It is par excellence a devolutive measure of control of a ruling issued by a court of the first instance. There are two types of appeal: a limited appeal (sine beneficio novorum) and a full appeal (cum beneficio novo-rum). A purpose of the limited appeal is to control and eliminate the consequenc-es of errors of the court of the first instance. On the other hand, the full appeal additionally includes the possibility to correct errors of the parties. A party, by the possibility to invoke new facts and evidence341, accepts that such control, regard-less of the form of the appeal, is never performed ex officio342. In principio, it may be said that the said remedy is admissible where the claim raised by the claimant was not admitted in the judgment of the court of the first instance, and therefore the basis for the appeal occurred (gravamen)343.

339 A judgment of the Supreme Court of 7.4.2011, I PK 225/10, Legalis.340 A judgment of the Supreme Court of 19.6.2012, II PK 265/11, Legalis.341 A. Zieliński, Postępowanie cywilne… [Civil Procedure…], p. 208 ff. 342 A. Oklejak, Apelacja w procesie cywilnym [Appeal in civil proceedings], Cracow 1994, p.12. 343 Decision of the Supreme Court of 27.7.2012, I PZ 9/12, Legalis.


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An appeal may be lodged against a correctly announced judgment of a labour court of the first instance to the labour court of the second instance344. A con-trario, there is no right to appeal against a judgment which was not correctly an-nounced and is considered to be sententia non existens. And appeal may also be lodged – as a consequence of lege non distinguente nec nostrum est disniguere principle – against a preliminary judgment, partial judgment and a supplemen-tal judgment. An exception is a default judgment (wyrok zaoczny). The right to appeal is granted to the plaintiff and the defendant may only lodge an objection. This was laid down explicitly in Art. 344 KPC.

An appeal against a judgment of a district court is heard by a regional court and an appeal against a judgment of the regional court acting as the court of the first instance is heard by a court of appeal. As a rule the case is heard by a panel of three judges. Exceptionally, in the case of evidentiary procedure, a decision is issued by the court in camera by one judge (Art. 367 § 2 and 3 KPC).

The appeal should meet the requirements prescribed for a pleading, and moreover it should contain: – specification of a judgment against which the appeal is lodged, indicating

whether the judgment is challenged in its entirety or in part,– a brief summary of the pleas in law of the appeal,– a justification of the pleas in law of the appeal,– presentation, if necessary, of new facts and evidence, including a justification

that presentation of such facts and evidence before the court of the first in-stance was not possible or that the need to present them arose on a later stage,

– a motion for amendment or annulment of the judgment, specifying the scope of the requested amendment or annulment. Under Art. 466 KPC the principle of written form of the appeal, as a plead-

ing, may be derogated from in labour law matters. An employee who is not rep-resented by a professional representative is entitled to lodge the appeal orally on the record. The lodgment by the employee is recorded together with his personal data and with specification against whom the appeal is lodged. Then it is imme-diately submitted to the chairman of the court’s division345. It is worth emphasiz-ing that under Art. 505 (14) KPC the application of Art. 466 KPC is excluded in the case of labour law matters conducted according to the simplified procedure.

A significant element of the appeal in labour law matters regarding proper-ty rights, which creates particular difficulties if an employee is not represented

344 Judgment of the Supreme Court SN of 30.11.2007, IV CNP 111/07, Legalis. 345 § 178–2 of the Regulation of the Minister of Justice – Rules of procedure of the courts of law

[rozporządzenie Ministra Sprawiedliwości, Regulamin urzędowania sądów powszechnych] of 23.2.2007 (Journal of Laws [Dz.U], No. 38, item 249).

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by a professional representative, is specification of the value of the object of ap-peal. It is worth noting that property matters are for example these concerning the existence of an employment relationship (entry into, determination of ex-istence, transformation, termination, reinstatement), although, prima facie, the claim pursued is not a financial claim. Ad exemplum, a claim for reinstatement is directly connected with obtainment of remuneration for work and of other financial benefits. The financial aspect of this right follows also from Art. 23¹ KPC346. The value of the subject of appeal may be indicated by giving a specific monetary amount or, in concreto, in a manner allowing rapid determination of the amount in question, for example by specification of a monthly remuneration in a case regarding compensation for wrongful termination of an employment relationship with an employee347. According to Art. 368 § 2, in principle a value of the matter at issue should not exceed the value of the matter at issue specified in the statement of claim and only exceptionally it may be specified as a higher amount. This is due to extension of claim (rozszerzenie powództwa) or award over and above the claim (orzeczenie ponad żądanie).

Another important aspect as regards the challenge of a judgment of the court of the first instance is a temporal aspect. An appeal is lodged to the court which delivered the judgment under appeal, within two weeks of service upon the ap-pellant of a judgment with the reasoning. If a party did not request the reason-ing of the judgment within one week from the announcement of the operative part of the judgment, the time-limit for lodging the appeal runs from the date on which the time-limit for requesting the reasoning has expired. The directive laid down in Art. 369 § 1 and 2 KPC specifies not only the terminus a quo that is the moment when the right to challenge the judgment arises but also the terminus ad quem, that is the moment when the right to exercise this remedy expires348. Lodgement of an appeal in court’s mail department or with a court’s employee authorised to collect correspondence in the court349 which issued the challenged ruling, or posting it in a Polish post office (Art. 165 § 2 KPC in a wording as at 01.1.2013350) does not cause serious problems. On the other hand, because of the development of the means of communication it is worth noting that the moment of lodgement of an appeal sent by fax or by e-mail is the time specified by an au-

346 A decision of the Supreme Court of 14.1.2011, II PZ 48/10, Legalis.347 A decision of the Polish Supreme Court (SN) of 5.1.2011, II PZ 47/10, Legalis.348 M. Waligórski, Polskie prawo cywilne, funkcja i struktura procesu [Polish civil law, function

and structure of the process], Warsaw 1947, p. 651 ff.; A. Oklejak, Apelacja… [Appeal…], p. 8–9. 349 § 15 of a decree of the Minister of Justice on the activities of court’s secretarial offices and

other divisions of court administration [zarządzenie Ministra Sprawiedliwości w sprawie działania sekretariatów oraz innych działów administracji sądowej] of 12.12.2003, Dz.Urz. MS no. 5, item 22).

350 Journal of Laws [Dz.U.] of 2012, item 1529.


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thorised court employee as the moment of receipt of the pleading in the court351. The time-limit for an appeal is considered observed also where the party lodged the remedy to the court of the second instance before expiration of such time-limit. In such case the court will immediately send the appeal to the court which delivered the judgment under appeal (Art. 369 § 3 KPC). The appeal lodged af-ter expiration of the prescribed time-limit, the appeal which has not been paid or is unacceptable for other reasons, as well as the appeal the formal defects of which were not corrected by the party within a time-limit specified by a court (termin sądowy), will be rejected by the court of the first instance, in a decision adopted in camera. The decision of the court, as a decision ending the proceed-ings, is subject to complaint under Art. 394 KPC.

Upon service of the appeal on the opposite party the court of the first in-stance shall immediately submit the case file to the court of the second instance. The opposite party may, within two weeks of service of the appeal, file a response to the appeal directly to the court of the second instance. However, the party does not have to exercise that right.

As a rule, in the proceedings in the second instance the court examines the case at the hearing. The exceptions are provided for in Art. 373 and 374 KPC re-spectively. The former applies to rejection of the appeal for the same reasons why it should be rejected by the court of the first instance or in a situation where the party called to correct a defect failed to do so within a specified time-limit. How-ever, it does not mean that in concreto a labour court may not call upon a party, also at the hearing, to correct formal defects of an appeal and then reject such appeal if the party fails to correct such defects within a prescribed time-limit352. Optionally, a case may be heard in camera, at the discretion of a judge. The latter situation occurs in the case of withdrawal of the statement of claim, withdrawal of the appeal or if conditions for invalidity of the proceedings were met. Also in the latter case, already at the stage of literal interpretation, the court may perform the said act at the hearing. The situation is different where the appeal meets all the requirements prescribed by law. In such case the court is obliged to sched-ule a hearing and notify the parties and other participants in the proceedings, in a proper form and within a prescribed time-limit. The said requirement is met also when „only” the appointed representatives or authorised agents for service were notified353.

351 A decision of the Supreme Court of 15.4.2011, III CZ 18/11, Legalis.352 A decision of the Supreme Court of 23.10.2008, V CZ 67/08, Legalis.353 A. Zieliński, Komentarz do art. 375, teza 4 [commentary to Art. 375, argument 4]

[in:] A. Zieliński (ed.), Kodeks postępowania cywilnego. Komentarz [Code of Civil Procedure. Com-mentary], Legalis.

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The appearance of the parties at the appeal hearing is optional, therefore the absence of the parties will not halt the procedure. As clearly stated in Art. 376 KPC, a delivered judgment is not a default judgment. An application submitted by a representative of a party for adjournment in concreto of an appeal hearing, justified by an excused absence, does not have to be granted by the court354.

It is worth noting that if a case raises a complex points of fact or points of law, the presiding judge may hold a preliminary meeting355.

After the case is called (wywołanie), the hearing will start with a report of a judge who should present a brief summary of the case with particular attention to the pleas in law of the appeal (zarzuty apelacyjne) and appeal motions (wnioski apelacyjne) (Art. 377 KPC). The brief summary presented by the judge rappor-teur and regarding the status of the case is mainly information for the parties to the litigation. In concreto, if there is no mention of such act in the minutes, this should not be considered an infringement of Art. 377 KPC significantly affect-ing the outcome of the case356.

The court of the second instance hears the case within the limits of the ap-peal (Art. 378 § 1 in principio KPC). Implicite, the limits are not determined by any motions or pleas in law of the appeal. The appellant may put forward new pleas in law or change the ones which were raised in concreto, provided that they are within the limits of the appeal357. However, it does not mean that the pleas in law raised in the appeal may be not considered by the court. On the contrary, the court is obliged to assess the entire body of evidence collected in the case, and, if such need arises, supplement the evidence.

Within the limits of the appeal the court of the second instance will ex offi-cio take the invalidity of the proceedings into account (Art. 378 § 1 KPC in fine). In the Code of Civil Procedure the legislature introduced a closed catalogue (nu-merus clausus) of the situations in which the proceedings are invalid. De lege lata, according to the provisions of Art. 379 and 1099 KPC, these include the follow-ing cases: – inadmissibility of court proceedings,– lack of capacity to be a party to legal proceedings or of a capacity to act in court

proceedings on the part of a party, of a body appointed to represent a party

354 A judgment of the Supreme Court of 27.4.2006, II PZ 166/05, Legalis; an opposite opinion was also presented in the literature: K.W. Baran, Procesowe… [Procedural…], p. 283.

355 § 61–2 of the Regulation of the Minister of Justice – Rules of procedure of the courts of law [Rozporządzenie Ministra Sprawiedliwości Regulamin urzędowania sądów powszechnych] of 23.2.2007 (Journal of Laws [Dz.U], No. 38, item 249).

356 A judgment of the Supreme Court of 5.3.2004, I CK 320/03, Legalis.357 A judgment of the Supreme Court of 20.11.2002, V CKN 1396/00, Legalis.


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or of a statutory representative of a party or where a litigation representative of the party was not duly authorised,

– if there is a case pending between the same parties and regarding the same claim or such case has already been validly adjudicated,

– a composition of the court is contrary to law or a judge excluded by law par-ticipated in examination of the case,

– the parties are deprived of the possibility to defend their rights,– a ruling is issued by a district court in a case in which a regional court has

jurisdiction regardless of the value of the matter at issue,– lack of national jurisdiction.

Moreover, within the limits of the appeal, the court of the second instance may, also ex officio, hear the case, also for the joint participants who did not challenge the judgment, provided, however, that the rights and obligations which were the subject of appeal are common to them (Art. 378 § 2 KPC). The joint participants should be notified of the hearing. They may lodge prepara-tory documents.

According to Art. 380 KPC, a court of the second instance may, upon re-quest of a party, review also the decisions of the court of the first instance which are not subject to complaint but which affected the outcome of the case. Ex-plicite, a condition for such review is that the decision is not subject to a com-plaint and at the same time it affects the outcome of the case358. Both condi-tions must be met jointly. Implicite, this regulation applies only to the decisions issued before the judgment. The judicial review is performed at the request in-cluded in the remedy against a decision which is subject to a complaint. If there is a professional representative acting in the case concerned, the motion should be clearly worded. There are no grounds on which the wording of the plead-ings submitted by the latter should be given the meaning not expressly stated there359.

According to a rule of the appeal proceedings expressed in Art. 382 KPC, a court of appeal should take decisions on the basis of evidence collected in the first-instance proceedings and in the appeal proceedings. Implicite, this means that the principle governing this evidentiary procedure is admission of new facts and evidence360 which constitute a classic nova in the beneficium novorum con-

358 J. Niejadlik, Kontrola postanowień poprzedzających wydanie wyroku w procesie cywilnym [Control of decisions preceding delivery of a judgment in civil proceedings], Warsaw 1978, passim; K. Pi-asecki, komentarz do art. 380, teza 2 [Commentary to Art. 380, argument 2], [in:] K. Piasecki (ed.), Kodeks postępowania cywilnego. Komentarz [Code of Civil Procedure. Commentary], Legalis/el. 2017.

359 A decision of the Supreme Court of 18.10.2011, II UZ 35/11, Legalis.360 A judgment of the Supreme Court of 12.7.2012, II UK 329/11, Legalis.

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cept characteristic of the appeal361. This principle is not absolute. An excep-tion was laid down explicitly in Art. 381 KPC according to which a court of the second instance may omit the facts and evidence if a party could have invoked them before the court of the first instance, unless the need to invoke them arose at a later date. A contrario, the court should admit new facts and evidence that the party was unable to invoke in the proceedings before the court of the first instance or where such need arose at a later date. According to the lege non dis-tinguente principle, each of the parties, both the appellant and the opposite par-ty, may exercise the right to invoke new facts and evidence362. It is worth not-ing that the court of the second instance may change the findings of fact which were the basis for the judgment of the court of the first instance without con-ducting the evidentiary procedure to justify different findings, provided that, in concreto, due to specific circumstances such procedure must be conducted once again or supplemented363. The restrictions regarding presentation of evidence in the appeal proceedings referred to in Art. 381 KPC apply only to the party and not the court – the latter has unlimited initiative as to evidence in order to fully clarify the case364.

According to tantum devolutum, quantum iudicatum principle, extension of the statement of claim or raising new claims in the appeal proceedings is not allowed (Art. 383 first sentence KPC). As from 5.2.2005, as a result of deroga-tion from Art. 477¹ § 1 KPC, a labour court is no longer obliged to rule in a case brought by an employee on the claims based on facts invoked by the claimant and not included in the statement of claim. Giving instructions referred to in Art. 477 second sentence KPC is the responsibility of the presiding judge in the court of the first instance. It may apply, in concreto, in the court of the second instance only if there are reasons for a material transformation of the statement of claim under Art. 383 second sentence KPC365.

A court may not repeal or change a judgment to the detriment of the appel-lant which in extenso is in compliance with directive: reformatio in peius iudi-ci appellato non licet. However, this principle is not absolute and is excluded in a situation where the opposite party also lodged an appeal (Art. 384 KPC). Both a literal interpretation and argumentum a rubrica imply that the reformationis in

361 T. Dziurzyński, Nowości w odwołaniu wedle austriackiej ustawy procesowej cywilnej [New regulations concerning appeal in the Austrian procedural law], Cracow 1910, p. 5 ff.; A. Oklejak, Apelacja… [Appeal...], p. 28.

362 Similar view: A. Zieliński, Postępowanie cywilne… [Civil procedure...], p. 213–214.363 A resolution of 7 judges of the Supreme Court – a legal rule – of 23.3.1999, III CZP 59/98,

OSNC 1998, No. 7–8, item 124.364 A decision of 7.12.2010, II UK 294/10, Legalis.365 A judgment of 27.3.2007, II PK 235/06, OSNP 2008, No. 11–12, item 162.


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peius principle expressed in Art. 384 KPC applies only to the jurisdiction of the court of the second instance and does not apply in the proceedings before a court of the first instance resulting from repeal of its previous ruling. The reformatio in peius principle is not infringed in every case when there is a subjective feeling that a ruling is unfavourable. A variation of a judgment of the court of the first instance consisting in reinstatement of the employee (plaintiff) instead of decla-ration of existence of an employment relationship between the parties under the terms and conditions of a contract of employment is not a change to the detri-ment of the employer (defendant) who was the only appellant (Art. 384 KPC)366. It should be noted that this does not apply to the ruling concerning costs of the trial367.

An unfounded appeal is dismissed by the court of the second instance (Art. 385 KPC). A contrario, a well-founded appeal is granted and the court of the second instance alters the judgment under appeal and rules on the merits. The above directive, laid down in art. 386 § 1 KPC, implicite creates a rule ac-cording to which a court of the second instance delivers an altering judgment (orzeczenie reformatoryjne), following its own findings of fact and its own as-sessment of the body of evidence collected in the case (Art. 382 KPC), provid-ed, however, that the change of the judgment under appeal is not solely a conse-quence of breach of substantive law by the court of the first instance368 (error in iudicando). In the case of annulment of the proceedings, the court of the second instance will ex officio repeal the judgment under appeal, cancel the proceedings in so far as they are invalid and will remand the case to the court of the first in-stance (Art. 386 § 2 KPC) (orzeczenie kasatoryjne). If the statement of claim is rejected or there are grounds for discontinuance of the proceedings, the court of the second instance will repeal the judgment and reject the statement of claim or discontinue the proceedings (Art. 386 § 3 KPC).

Except in the cases specified in Art. 386 § 2 and 3 KPC, the court of the sec-ond instance may repeal the challenged judgment and remand the case only if the court of the first instance did not examine the case on the merits or where it is necessary, for the issuance of the judgment, to conduct the evidentiary proce-dure in full. If the judgment is repealed and the case is remanded, the court will hear it, sitting in a different formation. The legal assessment and instructions for further procedure included in the reasoning of the judgment of the court of the

366 A judgment of the Supreme Court of 23.3.2003, I PKN 762/99, OSNAPiUS 2001, No. 15, item 479.

367 A decision of the Supreme Court of 22.6.2010, IV CZ 42/10, OSNC – Additional collection 2011, No. B, item 26.

368 A judgment of the Supreme Court of 26.9.2000, I PKN 54/00, OSNAPiUS 2002, No. 9, item 206.

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second instance are binding both upon the court to which the case was remanded and upon the court of the second instance at re-examination of the case. How-ever, it will not apply in the case of change of legal circumstances.

Another principle determining the appeal proceedings is expressed explicite in Art. 387 KPC. The court of the second instance should ex officio provide rea-sons for the judgment and for a decision closing the proceedings. This does not apply in cases where the appeal was dismissed. In such case the reasoning should be given only where a party requested service of the judgment with the reason-ing. The wording of such request should be unequivocal and it should be filed in due time (the content and time criterion). In conrceto, filing by a lawyer repre-senting a party of a motion including a demand to give reasons of the judgment of the court of the second instance cannot be equated with the demand to serve the judgment with the reasoning under Art. 387 § 3 KPC369. It should be under-lined that the request of a party cannot be a pro futuro request. If such request is filed before announcement of the operative part of the judgment, it is premature and does not produce procedural consequences, including in particular the start of the time-limit to lodge an appeal (Art. 393(4) in connection with Art. 387 § 1 first sentence KPC)370.

The reasoning should be drawn up within two weeks of announcement of the operative part of the judgment. If there was no announcement, the time-lim-it should be counted from the date of delivery of the judgment. If the appeal was dismissed, the reasoning should be drawn up within two weeks from the date of filing of the motion. A ruling with the reasoning should be served on the party who within one week of the announcement of the operative part of the judgment demanded the service. The provisions of Art. 327 § 2 apply respectively. If the ruling was not announced, the ruling with the reasoning should be served upon the parties, ex officio, within one week from drawing up the reasoning. If the rea-soning has not been drawn up and a cassation appeal or an action for annulment was brought in the case concerned the court of the second instance should draw up the reasoning within two weeks from the date of filing of the cassation appeal or the action.

In terms of the labour law matters, an important issue is enforceability of the rulings of the court of the second instance. Two provisions are of major impor-tance, namely Art. 477 (6) and Art. 388 KPC. On one hand Art. 477 (6) KPC provides that a judgment of the court of the first instance – awarding benefits in favour of an employee or members of his family – in relation to whom the court of the second instance dismissed an appeal brought by a work establishment, is

369 Judgment of the Supreme Court of 19.4.2012, IV CSK 384/11, Legalis.370 Decision of the Supreme Court (SN) of 15.9.2000, OSNAPiUS 2002, No. 8, item 190.


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immediately enforceable also in the part which was not declared immediately enforceable by the court under Art. 477² KPC. The above provision applies also to the judgments of the court of the second instance which award benefits in fa-vour of an employee or members of his family. In such cases the cour t of the sec-ond instance declares the judgment immediately enforceable on the date of an-nouncement of the judgment and such judgment with an enforcement clause is issued to the entitled party. This regulation is controversial as regards its relation to Art. 388 KPC. In the literature on the subject371 it is accepted that Art. 477 (6) KPC as a specific provision, excludes application of Art. 388 KPC. This is of ut-most importance in terms of proceedings in labour law matters. In my opinion, following the a rubrica argumentation, it is possible to argue that Art. 388 KPC applies in labour law matters and is not in conflict with Art. 477 (6) KPC, and moreover there is no specific/general provision relation between them as their scopes of regulation do not overlap. Such conclusions result implicite from the case-law of the Supreme Court. The powers granted to the court of the second instance under Art. 388 KPC have major practical implications. According to that provision, in a situation where a cassation appeal is lodged, if a serious irreparable damage could be caused to a party as a result of enforcement of a ruling, a court of the second instance (therefore not a Supreme Court)372 can stay the enforce-ment of the challenged ruling pending closing of the cassation proceedings or can make the enforcement of that ruling – and if the appeal is dismissed, also of the ruling of the court of the first instance – conditional upon provision of an ap-propriate security by the claimant. Art. 388 § 1 KP is applicable also to the judg-ments of the courts of the second instance on reinstatement of an employee373. A respective decision may be issued in camera.

According to Art. 389 KPC, if the time-limit for lodging an appeal against a delivered judgment, implicite also a decision, expires and no appeal has been lodged, the court of the second instance will return the files to the court of the first instance.

If, in the course of hearing the appeal, there arises a point of law raising se-rious doubts374, the labour court may, under Art. 390 KPC, submit it to the

371 K. Brol, Komentarz do art. 477 (6) KPC, teza 1 [Commentary to Art. 477(6) of the Code of Civil Procedure, argument 1], [in:] K. Piasecki (ed.), Kodeks postępowania cywilnego. Komentarz [Code of Civil Procedure. Commentary], vol. 2, 5th edition, Warsaw 2010; K. Flaga-Gieruszyńska, Komentarz do art. 477 (6) KPC, teza 2 [Commentary to Art. 477(6) of the Code of Civil Procedure, argument 2], [in:] A. Zieliński (ed.), Kodeks prawa pracy. Komentarz [Labour Code. Commentary], Legalis/el. 2012; and M. Mędrala, Funkcja ochronna… [The protective function...], p. 257.

372 A judgment of the Supreme Court of 7.2.2002, II UKN 47/01, OSNAPiUS 2002, No. 13, item 9.373 Resolution of the Supreme Court of 22.12.1998, III ZP 35/08, OSNAPiUS 1999, No. 21,

item 674.374 A decision of the Supreme Court of 8.9.2011, III CZP 45/11, Legalis.

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Supreme Court for resolution and defer a case to be dealt with at a later date. The court of the second instance may exercise the right laid down in Art. 390 § 1 KPC provided that it proves that it has important legal questions to resolve and at the same time that the answer is necessary for the resolution of the case which means an obligation of the court of appeal to provide a detailed reasoning according to which there are important legal questions which are in causal link with the resolution of the case and which cannot be resolved on the basis of the previous case-law and legal writings375. If the above conditions are met, the Su-preme Court may take over the case or refer the legal question to be resolved by the extended composition of the Court. A resolution resolving a legal question is binding in the case concerned.

A principle laid down in Art. 391 § 1 KPC is the right of a party to withdraw the appeal and the obligation of the court of the second instance to discontinue the appellate procedure and decide on the costs as in the case of withdrawal of the claim376. If the appeal has been withdrawn before a court of the first instance, the proceedings should be discontinued by the court of the first instance. Such action, which is strictly dispositive, is not subject to judicial review. In labour law matters the provisions of § 1 of the mentioned article are of significant impor-tance. It provides that if there are no specific provisions governing the procedure before a court of the second instance, the provisions on the procedure before the court of the first instance should apply, mutatis mutandis. This refers, implicite, to the provisions of Art. 469 KPC which authorise a judicial review of an activ-ity aimed at withdrawal of a previously lodged appeal. This is supported by the wording of Art. 391 § 1 KPC which is not restricted to the regulations governing the appeal but it mentions any provisions governing the procedure before a court of the second instance. Implicte it refers also to Art. 469 KPC.

375 A decision of the Supreme Court of 27.5.2010, III CZP 32/10, Legalis.376 R. Więckowski, Cofnięcie apelacji i kasacji [Withdrawal of an appeal and a cassation], PS 2002,

No. 7–8, p. 158 ff. and literature referenced there.


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§ 14. Cassation appeal (skarga kasacyjna) in labour law matters

M. Wujczyk

14.1. Overall characteristricsAs a result of the amendment of 22.12.2004 of the Code of Civil Procedure377

the previously known cassation (kasacja) was replaced by a cassation appeal (cas-sation complaint) (skarga kasacyjna). It is no longer an ordinary appeal but it be-came an extraordinary legal remedy.

The main purpose of the cassation appeal is not only to control legality of valid judgments delivered by the court of the second instance but primarily the protection of public interest378.

Currently, a cassation appeal may be lodged only against valid rulings of the court of the second instance. Consequently, the proceedings initiated as a result of the cassation appeal are not a continuance of the previous proceedings but should be considered proceedings in a new case. Therefore, an exemption from court fees granted under a decision of the court of the first or second instance does not extend to the cassation proceedings. Moreover, a power of attorney for litigation does not cover, by virtue of law, the authorisation to lodge a cassation appeal and to participate in the cassation proceedings379.

As noted before, according to Art. 3981 §1 KPC a cassation appeal may be lodged against a valid judgment of a court of the second instance or its decision rejecting the action or discontinuing the procedure ending the case concerned, unless the specific laws provide otherwise. A judgment of the court of the second instance repealing the judgment of the court of the first instance and remanding the case is not a judgment ending the proceedings380. On the other hand, a judg-ment ending the proceedings is for example a judgment of the court of the second instance which dismisses an appeal against a preliminary judgment381.

377 Act of 22.12.2004 on the amendment of the Code of Civil Procedure and the Law on the system of general courts (Journal of Laws [Dz.U.] of 2005, No. 13, item 98).

378 See: L. Bagińska, Skarga kasacyjna w postępowaniu cywilnym [Cassation appeal in the civil procedure], Warsaw 2012, p. 20.

379 See a resolution of the Supreme Court of 5.6.2008, III CZP 142/07, OSNC 2008, No. 11, item 122.

380 See a judgment of the Supreme Court of 9.1.2012, II UZ 47/11, Legalis.381 See: T. Zemburzewski, Skarga kasacyjna. Dostępność w postępowaniu cywilnym [Cassation

appeal in the civil proceedings], Warsaw 2009, p. 166–169.

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14.2. Inadmissibility of a cassation appealIn labour law matters the cassation appeal is inadmissible in the following

cases:– in matters regarding property rights where the value of the matter at issue is

less than PLN 10 000. This means that the restrictions regarding the cassation appeal do not apply to non-property matters and to matters which relate to both property and non-property rights (where a non-property claim is pursued jointly with a property claim)382,

– in matters regarding penalties for breach of order in the workplace (kary porządkowe), certificate of employment (świadectwo pracy) and the related claims and those regarding remuneration in-kind or equivalent. The exemp-tion of the above cases from the cassation review means that the legislature considers them cases of minor importance383,

– cases heard in the simplified procedure.

14.3. Parties entitled to file the cassation appealThe cassation appeal may be filed by the parties to the proceedings. In labour

law matters they will be both an employee and an employer, regardless of wheth-er they are a plaintiff or a defendant. The cassation appeal may be filed also by an intervener384.

The cassation appeal may also be filed by a public prosecutor, a social organ-isation and a labour inspector provided that they joined the ongoing proceed-ings at an earlier stage385. To ensure protection of public interest, the legislature granted the right to file a cassation appeal to the General Prosecutor and to the Ombudsman (Rzecznik Praw Obywatelskich). Their right is not conditional upon their previous participation in the proceedings. However, they may file the cas-sation appeal only to the extent not covered by the parties to the proceedings386.

382 See: M. Mędrala, Funkcja ochronna… [The protective function…], p. 266.383 See: G. Wydra, Warunki dopuszczalności kasacji w sprawach z zakresu prawa pracy na pod-

stawie badań aktywnych – cz. 1 [Conditions for admissibility of a cassation in labour law matters on the basis of active research – part 1], PiZS 2000, No. 11, p. 11.

384 J. Klimkowicz, Interwencja uboczna według kodeksu postępowania cywilnego [Secondary intervention according to the Code of Civil Procedure], Warsaw 1972, p. 144.

385 Compare: M. Michalska, Legitymacja do wniesienia kasacji w postępowaniu cywilnym [A right to file a cassation appeal in the civil procedure], Palestra 2003, No. 5–6, p. 45.

386 See: M. Waligórski, Polskie prawo procesowe cywilne w świetle zasady dyspozycyjności [Polish civil procedural law in the context of the principle of delimitaion of the subject-matter of proceedings by the parties], Studia Cywilistyczne 1962, vol. II, p. 41 ff.


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14.4. Compulsory representation by a lawyer Because of the exceptional nature of the cassation proceedings and a signifi-

cant degree of difficulty in drafting a cassation appeal, in order to ensure a high quality of pleadings addressed to the court of the highest instance in the coun-try, the legislature decided to introduce an absolute obligation to be represented by a professional lawyer (adwokat or radca prawny). According to Art. 871 KPC, in the proceedings before the Supreme Court the parties must be represented by a lawyer (adwokat or radca prawny) (this obligation, contrary to the literal word-ing of this provision, applies also to the secondary interveners387). The obligation of compulsory representation in filing a cassation appeal does not apply to an em-ployee or an employer who has the status of a judge, public prosecutor, notary or professor or a habilitated doctor of legal sciences. The exemption applies also in a situation where the abovementioned persons are a governing body, statutory representative or an attorney of a party. The legal representation in the cassation proceedings is not necessary also where a party, its governing body or its repre-sentative is an attorney at law (adwokat), legal counsel (radca prawny) or a coun-sel (radca) of the Office of the Treasury State Attorney (Prokuratoria Generalna Skarbu Państwa). It is not necessary that the abovementioned persons practice their profession; they only need the specific professional title. For that reason, the case-law has accepted that exemption from the obligation to be represented by a lawyer remains valid if a party is represented by a retired lawyer (adwokat or radca prawny). The retirement does not result in loss of knowledge or legal skills acquired when practicing the profession388.

It should be clear from a properly granted power of attorney to file a cassa-tion appeal that it authorises to act before the Supreme Court in the case con-cerned. Authorisation of a lawyer by phone to file a cassation appeal is not grant-ing a power of attorney within the meaning of Art. 89 § 1 and 2 KPC389. If the proper power of attorney has not been attached, the Court will call upon the at-torney to remedy the formal defect of the cassation appeal390.

A lawyer appointed for a party by the court may refuse to draw up a cassa-tion appeal if such cassation appeal is inadmissible or manifestly unfounded. This right is a consequence of the obligation of the professional representatives to ensure high quality of proceedings before the Supreme Court which would obvi-

387 See: T. Zemburzewski, Skarga… [Cassation…], p. 331.388 See: A. Zieliński, [in:] T. Zieliński, K. Flaga-Gieruszyńska, Kodeks postępowania cywilnego.

Komentarz [Code of Civil Procedure. Commentary], Warsaw 2008, p. 171.389 See a decision of the Supreme Court of 3.7.2000, II UZ 75/00, OSNAPiUS 2002, No. 7, item

172.390 Compare: H. Pietrzykowski, Czynności… [Procedural…], p. 424.

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ously be not met if an inadmissible or manifestly unfounded cassation appeal was filed. The right was granted both to a professional representative of choice and a court-appointed representative391. However, as regards the latter, if he does not find grounds for the cassation appeal, he must immediately notify the court and the party in writing, not later than within two weeks from the date when he was notified of his appointment by the court. Such notification should be accompa-nied by his opinion according to which there are no grounds for filing the cassa-tion appeal. The opinion is not attached to the files of the case and is not served upon the opposite party (Art. 118 § 5 KPC). In such case the court should assess whether the legal opinion was prepared „with due care” (Art. 119 § 6 KPC). If the court determines that the due care was observed, the court-appointed representa-tive will no longer be needed392.

If the cassation appeal is filed by the party itself, without a professional rep-resentative, it will be rejected under Art. 3986 § 2 KPC as inadmissible for other reasons, and the court will not call upon the party to remedy the defects in this respect393. The compulsory representation by a lawyer does not apply to the acts performed in the proceedings concerning exemption from costs of the cassation proceedings and appointment of a lawyer – since these acts are performed before the court of the second instance (Art. 871 § 2 KPC). Despite the lack of explicit statutory exemption it should be considered that a party does not have to be rep-resented by a professional lawyer also at filing a request for service of a ruling of the court of the second instance and the reasoning394. The obligation to be rep-resented by a lawyer applies not only to filing the cassation appeal but also for correcting defects of such cassation appeal395.

14.5. Time-limit to file the cassation appeal The time-limit to file a cassation appeal is two months from the date of ser-

vice upon a party of the judgment of the court of the second instance with rea-soning. The time-limit for the General Prosecutor and the Ombudsman who may also file the cassation appeal is longer and it is six months starting from the

391 See a resolution of the Supreme Court of 24.9.2001, III CZP 14/00, OSNC 2001, No. 2, item 21.392 See: Z. Klata, S. Ciupa, K. Stoga, T. Stecyk, Zasady etyki zawodowej [Principles of professional

ethics], [in:] A. Bereza (ed.), Zawód radcy prawnego. Historia zawodu i zasady jego wykonywania [Legal counsel. A history of the profession and the rules of professional practice], Warsaw 2015, p. 126.

393 See a decision of the Supreme Court of 19.5.2000, IV CKN 1008/00, OSP 2001, No. 12, item 180.

394 See: H. Ciepła, [in:] K. Piasecki (ed.), Kodeks postępowania cywilnego Komentarz. Tom I [Code of Civil Procedure. Commentary. Vol. I], Warsaw 2010, p. 447–448.

395 See a decision of 8.1.1998, II CZ 154/97, OSNC 1998, No. 7–8, item 122.


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date when the ruling becomes valid and final and if a party demanded service of the ruling with reasoning – from the date of service of the ruling upon the party.

A condition for admissibility of a cassation appeal is that a party files a mo-tion for service of the judgment with the reasoning (it is a so-called announce-ment of the cassation appeal – zapowiedź skargi kasacyjnej)396. The motion for service of the ruling with the reasoning should be filed within one week from the announcement of the operative part of the ruling. Such motion does not have to be filed by a professional representative. A party who failed to file such motion is not entitled to bring the cassation appeal. If, however, the party brings the cas-sation appeal, it will be rejected as inadmissible397. As rightly pointed out by the Supreme Court, a manifestation of extreme formalism is rejection of a motion of a party which does not request service of the ruling with the reasoning but mere-ly the service of a reasoning of that ruling398. A motion for service of the ruling with the reasoning filed by a party before announcement of the operative part of the judgment produces no procedural effects399. If, despite a correct motion, the court serves upon a party only the operative part of the judgment, the time-limit for filing the cassation appeal is not opened. In such event the applicant should take appropriate steps to ensure that the court fully complies with the demand400.

As mentioned before, a party may file the cassation appeal within two months from the date of service upon the party of a judgment with reasoning. The said time-limit is a continuous time-limit (tempus continuum) therefore the provisions on interruption or suspension do not apply to it (Art. 121–123 KPC)401. For ex-ample, the above time-limit is not suspended in the case of filing a motion for a court-appointed attorney402. As of the date of notification of the party on the appointment of an attorney for the party by the court to prepare and file a cas-sation appeal a party has one week to file a motion for re-establishment of rights (restitutio in integrum) in respect of the missed time-limit for filing the cassation appeal403. The time-limit for filing the cassation appeal is calculated in accord-ance with Art. 112 in connection with Art. 165 § 1 KPC under which the time-

396 T. Ereciński, Apelacja i kasacja w procesie cywilnym [Appeal and cassation appeal in civil proceedings], Warsaw 1996, p. 111.

397 See a decision of the Supreme Court of 6.6.1997, II CZ 64/97, Legalis.398 See a decision of the Supreme Court of 7.2.2006, IV CZ 7/06, Legalis.399 See a decision of the Supreme Court of 14.7.2006, II CZ 46/06, Legalis.400 M. Michalska, Rozstrzygnięcie sądu kasacyjnego w sprawie cywilnej [Decision of a cassation

court in a civil matter], Cracow 2004, p. 117 ff.401 See: W. Broniewicz, Terminy w postępowaniu cywilnym [Time-limits in civil procedure], NP

1971 , No. 9, p. 1318 ff.402 See a decision of the Supreme Court of 18.10.2000, II UZ 113/00, OSP 2002, No. 12, item 296.403 See a decision of the Supreme Court of 18.12.1998, II UKN 347/98, OSNP 2000, No. 4, item

164.

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limit specified in months ends at the end of the day the date of which corresponds with the start date of the time-limit, and if there is no such day in the last month, then it shall end on the last day of the month. This means that the time-limit of two months for filing a cassation appeal expires, as a rule, on the day which cor-responds to the day of service upon a party of the judgment with the reasoning (for example, if the judgment was served on 12 March, the time-limit for filing the cassation appeal will expire on 12 May). The time-limit may be extended if the end of the time-limit falls on a public holiday.

During the period of 2 months the cassation appeal is at the disposal of the claimant. Therefore, he may withdraw the cassation appeal within this period. Moreover, until expiry of the 2-month time-limit he may file another cassation appeal if the previous one was rejected (for example because of failure to remedy formal defects).

If the time-limit for filing the cassation appeal is not observed it is possible to request the restritutio in integrum in respect of the time-limit in accordance with the general rules (Art. 168 et seq. KPC). The motion can be granted pro-vided that there is no fault on the part of both the party and its representatives (including persons employed by the professional representatives, such as law-yer’s secretary who posted the letter)404. According to a case-law of the Supreme Court, any organisation shortcomings in the operations of the law office cannot constitute grounds justifying re-establishment of rights in respect of the missed time-limits405. Under Art. 168 KPC it may be assumed that there is no fault in the event of illness of a party or its representative which prevented taking actions not only in person but made it impossible also to use help of other persons406. However, the re-establishment of rights in respect of the time-limit for filing the cassation appeal is not possible if the party failed to demand service of the judg-ment with reasoning407.

It should also be noted that the time-limit for filing the cassation appeal is met if the cassation appeal was filed within such time-limit to a competent court which is a court which delivered the challenged ruling408. The cassation appeal may be filed directly in court or by a postal operator. According to jurisprudence, posting the cassation appeal in a foreign post office does not guarantee that the

404 See a decision of the Supreme Court of 3.12.1999, I PKN 76/99, OSNPiUS 2000, No. 11, item 431; a decision of 30.9.2004, IV CZ 118/04, Legalis; T. Kostecki, Przywrócenie uchybionego terminu w KPC [Re-establishment of rights in respect of a time-limit according to the Code of Civil Procedure], Gł. Sąd 1936, No. 12, p. 934.

405 See a decision of the Supreme Court of 7.11.2005, I CZ 192/04, Legalis406 See a decision of the Supreme Court of 21.7.2004, V CZ 68/04, Legalis.407 See: L. Bagińska, Skarga… [Cassation…], p. 55.408 See a decision of the Supreme Court of 13.10.2005, I CZ 107/05, not published.


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time-limit will be observed. The time-limit will be observed if the postal item is taken by the Polish postal operator before expiry of the 2-month time-limit for filing the cassation appeal409.

14.6. A form of the cassation appealThe cassation appeal, as a formalized legal remedy, must contain certain ele-

ments. The requirements to be met by the cassation appeal are divided into struc-tural requirements and ordinary formal requirements.

The cassation appeal should meet the following structural requirements:– it should specify the ruling against which it has been lodged and indicate

whether it is challenged in whole or in part,– it should specify the grounds for the cassation appeal and state the reasons,– it should include a request to repeal or change the ruling and should specify

the scope of the requested repeal or change.If the cassation appeal lacks any of the structural elements, it shall not be com-

plemented under Art. 130 § 1 KPC and should be rejected a limine410. However, a party may remedy such defects on its own initiative by the end of the time-limit in which the cassation appeal may be filed411.

Specification of the ruling against which the cassation appeal has been lodged must be as precise as possible. A correct specification should include the name of the court which delivered the challenged judgment, date of delivery, case refer-ence number, names of the parties as well as a matter at issue412.

The party filing the cassation appeal should specify whether it challenges the judgment in its entirety (for example „I appeal against the judgment of the Regional Court in Cracow, VI Division of Labour Matters, of 12.1.2013, case reference number: VI Pa 5/12, in its entirety) or in part („I appeal against the judgment of the Regional Court in Cracow, VI Division of Labour Matters, of 12.1.2013, case reference number: VI Pa 5/12, in the part relating to the claimant Joanna Szablewska and in this regard I request that …”). The party challenging a judgment in part should specify in detail the extent of such challenge. There was a view presented in the case-law according to which in the absence of the speci-fication whether the judgment is challenged in its entirety or in part, it should be assumed that it is challenged in the entirety413. This view cannot be support-

409 Compare S. Cieślak, Formalizm postępowania cywilnego [Formalism of the civil procedure], Warsaw 2008, p. 259.

410 See a decision of the Supreme Court of 23.5.2001, V CZ 49/01, Legalis.411 See a decision of the Supreme Court of 5.1.2006, I PZ 25/05, OSNP 2007, No. 1–2, item 14.412 T. Ereciński, Apelacja… [Appeal…], p. 115.413 See a decision of the Supreme Court of 25.10.2001, I PZ 77/01, OSNP 2003, No. 18, item 441.

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ed. The scope of the challenge should not raise any doubts. Interpretation of such scope and its directions is unacceptable since the cassation appeal should be worded in such a manner so as not to create any doubts regarding its interpreta-tion414. The part of the judgment of the court of the second instance which was not challenged is not subject to review by the Supreme Court415.

It should be kept in mind that a cassation appeal may be filed only where a party has a legitimate interest in the change of the challenged judgment (the so-called gravamen). A party does not have a legitimate interest in filing the cas-sation appeal if the judgment of the court of the second instance was delivered in compliance with the appeal brought by that party.

In the cassation appeal a party must invoke its grounds and reasons. The grounds of the cassation appeal may be infringement by the court of the second instance of procedural laws, if such infringement could have significantly affected the outcome of the case, and infringement of substantive laws by their incorrect interpretation or application. Pleas concerning findings of fact or as-sessment of evidence cannot be grounds of the cassation appeal (Art. 3983 § 3 KPC). Incorrect interpretation of a provision means giving it the meaning which is contrary to the intention of the legislature. Incorrect application means incor-rect application of law to the facts (incorrect subsumption)416. As regards in-fringement of procedural laws as the basis for the cassation appeal, only the sig-nificant ones may be invoked. When interpreting the infringements significantly affecting the outcome of the proceedings, it should be kept in mind that it refers only to infringements which are decisive for the outcome of the case. As rightly pointed out by the legal commentators, emphasis should be put not so much on the significance of the provision itself but more on the significance of the error the consequence of which was an infringement of a specific procedural provi-sion417. The party should indicate the effects of a specific procedural error of the decision of the court of the second instance.

Statement of the grounds of the cassation must be explicit. The grounds of the cassation cannot be derived from the assertions included only in the reasoning418. Indication of the provisions which cannot be justified by the cassation appeal is only an apparent indication of the grounds of the cassation419.

414 See a decision of the Supreme Court of 4.2.1999, II CZ 152/98, Legalis.415 S. Hanasek, Orzeczenie sądu rewizyjnego w procesie cywilnym [A ruling of a review court in

the civil trial], Warsaw 1967, p. 101–102.416 J. Krajewski, Naruszenie prawa materialnego jako podstawa rewizyjna według k.p.c. [Breach

of substantive law as grounds for review under the Code of Civil Procedure], NP 1958, No. 10, p. 19.417 See: T. Zemburzewski, Skarga… [Cassation…], p. 300.418 See a judgment of the Supreme Court of 12.1.2001, III CKN 1251/00, Legalis.419 See a judgment of the Supreme Court of 20.7.2000, I PKN 741/99, OSNAPiUS 2002, No. 3,

item 73.


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There are doubts in the literature whether a legal provision the infringement of which is raised in the grounds of the cassation appeal must be indicated in digits or may be clear from the expressions used. I share an opinion according to which there is no need to indicate specific provisions in digits if the provisions referred to may clearly be inferred from the expressions used. However, if the expressions used indicate more than one provision (for example there is doubt which paragraph of an article the party considers to be the grounds of the cas-sation appeal), it cannot be considered that the grounds of the cassation appeal were properly worded420.

Apart from indication of grounds of the cassation appeal, it is necessary to provide their reasoning. The reasoning should specify the relation between the infringement and irregularity of the delivered judgment. The reasoning should include the broadest possible clarification of infringements which according to the party were committed by the court of the second instance.

A frequent error made by litigation representatives is that they base a cassa-tion appeal on the plea of infringement of Art. 233 KPC. This provision applies to the assessment of reliability and value of evidence and cannot be invoked as grounds of the cassation because of the provisions of Art. 3983 § 3 KPC. This was quite explicitly stated by the Supreme Court which held that the pleas regarding establishment of facts or assessment of evidence (Art. 3983 § 3 KPC) cannot con-stitute grounds of cassation appeal which means that the cassation appeal can by no means be based on the plea of infringement of Art. 233 § 1 KPC421.

The pleas in law which may be raised as grounds of the cassation appeal and regarding infringement of substantive and procedural laws are specified also by the case-law.

The infringement of substantive law by the labour court will consists in mis-interpretation or misapplication of substantive provisions. In practice, they will involve:– incorrect assumption that the applicable legal norm is actually inapplicable or

omission of the actually applicable norm,– erroneous supplementation of provisions by analogy,– misinterpretation of a legal norm,

420 See: T. Zemburzewski, Skarga… [Cassation…], p. 304. As rightly pointed out by the author, an incorrect numerical indication of an article or a legal act does not produce negative consequences to a party, if the wording of the cassation appeal clearly indicates to which provision the claimant refers (T. Zembrzuski, Skarga… [Cassation…], p. 304).

421 See a decision of the Supreme Court of 6.12.2011, I UK 229/11, Legalis. As regards doubts con-cerning the lack of possibility to question the findings regarding the evaluation and force of evidence in the cassation proceedings see: M. Manowska, Zasada prawdy materialnej w świetle nowelizacji Kodeksu postępowania cywilnego [The principle of material truth and the amendment of the Code of Civil Procedure], Pr. Spółek 1999, No. 12, p. 49 ff.

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– incorrect definition of relations between the facts established in the procedure and the legal norm422. As regards infringement of substantive law as the grounds of the cassation ap-

peal, the following opinions are presented in the case-law:– a plea alleging infringement of substantive laws cannot serve to indirectly ques-

tion the findings of fact or be based on one’s own version of facts423. However, the plea of erroneous application of a provision of substantive law may be justified by the method of the established facts which prevent the evaluation of the correct application of substantive laws424,

– a plea of infringement of Art. 6 of the Civil Code (KC) may be grounds of the cassation appeal if it is linked to an applicable provision of substantive law enabling assessment of the consequences of failure to establish relevant facts. The court’s finding that the evidence taken in the case concerned is not sufficient to recognize as proven the circumstances which under Art. 6 KC should have been proven by the party who attributes legal consequences to them may be contested by a plea of infringement of relevant procedural laws and not by a plea of infringement of the mentioned provision425,

– the existence and the wording of acts of autonomous labour law specified in Art. 9 § 1 KP is the factual basis of a ruling and the legal assessment applies to their validity, relation to other legal acts and interpretation426,

– determination of contents of declarations of will of a party to a contract is a finding of fact which cannot be effectively challenged by the claimant in the cassation procedure under Art. 3983 § 3 KPC. Only an interpretation of a dec-laration of will established by a court and included in an agreement concluded between the parties is a legal issue which may be subject – if a respective plea in law is raised – to a review by the Supreme Court in the cassation procedure427,

– substantive law may be considered correctly applied only if the findings serving as a basis for delivery of the challenged judgment allow for the evaluation of such application. Therefore, the absence of relevant findings justifies the plea of infringement of substantive law by its incorrect application428,

– Art. 5 of the Labour Code cannot be invoked as the grounds of a claim. It is a referring provision and therefore the provision alone does not grant any rights (claims). Therefore, it cannot be an independent substantive basis of claimant’s

422 See: K.W. Baran, Procesowe… [Procedural…], p. 292.423 See a decision of the Supreme Court of 8.12.2011, IV CSK 180/11, Legalis.424 See a decision of the Supreme Court of 22.3.2012, IV CSK 415/11, Legalis.425 See a judgment of the Supreme Court of 14.7.2011, III SK 4/10, Legalis.426 See a judgment of the Supreme Court of 16.6.2011, I PK 272/10, Legalis.427 See a judgment of the Supreme Court of 15.10.2010, V CSK 36/10, Legalis.428 See a judgment of the Supreme Court of 15.5.2009, II CSK 708/08, Legalis.


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claim for change of a qualification assessment. Such basis could be a provision of the Labour Code (to which a reference is made under Art. 5 KP) or a provi-sion of the Civil Code (to which reference is made under Art. 300 KP)429,

– the cassation appeal cannot be based on the pleas of violation of procedural laws if they apply to the proceedings before a court of the first instance and were not raised in the appeal430,

– a plea of infringement of a provision of a statute of a cooperative by its misin-terpretation or incorrect application may be invoked in the cassation appeal only in conjunction with a plea of infringement of a specific provision of substantive law (Art. 3983 § 1 (1) KPC)431,

– provisions of a contract of employment are not substantive law the infringe-ment of which could be the basis of the cassation appeal (Art. 3983 § 1 (1) KPC)432.On the other hand, as regards the grounds of the cassation appeal concern-

ing infringement of procedural laws, the following opinions are presented in the case-law of the Supreme Court:– Art. 385 KPC cannot be an independent basis for formulation in a cassation

appeal of pleas in law alleging infringement of procedural laws. Invocation in a cassation appeal of a plea of infringement of Art. 233 § 1 KPC is unacceptable (Art. 3983 § 3 KPC)433,

– where a reasoning is drafted in a manner which does not correspond fully with the requirements laid down in Art. 328 § 2 KPC, it may constitute reasonable grounds of the cassation appeal if the reasoning of the challenged judgment does not contain all the necessary elements or where the reasons presented do not allow a cassation review434,

– failure to exercise the right provided for in Art. 286 KPC and issuance of a ruling on the basis of one of the conflicting expert opinions constitutes breach of that provision which could have significantly affected the outcome of the case within the meaning of Art. 3983 § 1 (2) KPC435,

– failure to issue a preliminary judgment does not affect the outcome of the case (Art. 3983 § 1 (2) KPC)436,

429 See a judgment of the Supreme Court of 9.7.2008, I PK 14/08, Legalis.430 See a judgment of the Supreme Court of 27.3.2008, III CSK 210/07, Legalis.431 See a judgment of the Supreme Court of 14.3.2008, IV CSK 515/07, OSNC 2009, No. B, item 35.432 See a judgment of the Supreme Court of 23.11.2006, I PK 202/06, OSNP 2008, No. 1–2, item 5.433 See a judgment of the Supreme Court of 6.5.2011, II CSK 545/10, Legalis.434 See a decision of the Supreme Court of 29.5.2008, II CSK 58/08, Legalis.435 See a judgment of the Supreme Court of 6.5.2008, I PK 276/07, Legalis.436 See a judgment of the Supreme Court of 11.3.2008, II PK 200/07, OSNP 2009, No. 11–12,

item 143.

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– a plea of infringement of Art. 229 KPC cannot be invoked in the cassation appeal437,

– failure of the court of the second instance to recognize that the proceedings before the court of the first instance were invalid does not automatically result in invalidity of a ruling of the court of the second instance. In such situation it is only possible to raise a plea of infringement of procedural laws by the court of the second instance which significantly affected the outcome of the case438,

– disregarding evidence does not amount to assessment of such evidence and may be grounds of the cassation appeal in the context of Art. 3983 § 3 KPC439,

– failure to call upon an interested person wh o is not a participant in the pro-ceedings to participate (Art. 510 § 2 KPC) is a procedural error which does not result in invalidity of the proceedings. Such error may be grounds of the cassation appeal under Art. 3983 § 1 (2)KPC if it is proven that it could have a significant influence on the outcome of the case440,

– failure to consider an application for a third party notice (wniosek o przypo-zwanie) (Art. 84 § 1 KPC) does not significantly affect the outcome of the case within the meaning of Art. 3983 § 1 (2) KPC if the purpose of the application was only to obtain an opinion of the third party as to the legitimacy of the claim441,

– a procedural error which consists in failure to comply with court’s decision on the appointment of a court-assigned attorney as a result of which the party acted alone is a circumstance which may significantly affect the outcome of the case442.As regards the structural requirements for the cassation appeal, it should in-

clude a request to repeal or change the ruling and should specify the scope of the requested repeal or change. If a basis of the cassation appeal is infringement of procedural laws only, the party may only demand that Supreme Court repeals the challenged ruling and remands the case to the court of the second instance. If, however, the basis of the cassation appeal is (only or in addition to the in-fringement of procedural laws) the infringement of substantive laws, then a par-ty may demand the Supreme Court both to remand the case to the court of the second instance and to rule on the merits443. However, the Supreme Court hear-

437 See a judgment of the Supreme Court of 10.1.2008, IV CSK 404/07, Legalis.438 See a judgment of the Supreme Court of 9.5.2006, II PK 302/05, Legalis.439 See a judgment of the Supreme Court of 23.2.2006, I CSK 29/05, Legalis.440 See a decision of the Supreme Court of 21.5.1997, I CKN 39/97, OSNC 1997, No. 12, item 197.441 See a judgment of the Polish Supreme Court (SN) of 7.3.1997, I PKN 27/97, OSNC 1997,

No. 21, item 422.442 See a decision of the Supreme Court of 7.5.1997, II CKN 197/97, Wok. 1997, No. 9, p. 9.443 See: T. Ereciński, [in:] T. Ereciński (ed.), Kodeks postępowania cywilnego [Code of the Civil

Procedure], vol. I, Warsaw 2006, p. 225.


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ing the cassation appeal is not bound by the contents of the claimant’s motion, as opposed to the indication of the scope of the challenge444. A cassation appeal which includes a reasoning that is not connected with the invoked grounds of cassation and the pleas raised in this respect or which fails to include any juridi-cal argumentation shall be rejected445.

According to L. Bagińska, a claimant may request the court to:1) repeal the challenged judgment in whole or in part, with an indication which

part, if the basis of the cassation appeal is infringement of substantive laws or infringement of procedural laws, or both (art. 39815 § 1 KPC),

2) repeal the challenged judgment in whole or in part, with an indication which part, or repeal and change the challenged judgment, specifying the scope of the requested repeal or change (Art. 39815 § 1 KPC) if the cassation appeal was based on the two mentioned bases or only on the infringement of substantive law,

3) repeal and change the challenged judgment, with an indication of the scope of the requested repeal or change, if the basis of the cassation appeal was infringement of substantive law (Art. 39816 KPC),

4) repeal in whole or in part the challenged judgment and repeal in whole or in part (with an indication which part) a judgment of the court of the first instance if such judgment is affected by invalidity of the proceedings which was not taken into account by the court of appeal (Art. 39815 first sentence KPC.),

5) repeal the challenged judgment in whole or in a specified part to the extent of its invalidity (Art. 386 § 2 in connection with Art. 39821 KPC)446.Formulation by a party of an alternative application for repeal and change of

the challenged judgment or for repeal of the judgment and remanding the case to the court of the second instance should be considered admissible.

The cassation appeal should also include a request for admission of the cas-sation appeal for consideration. However, unlike the requirements mentioned above, in the absence of the application for admission of the cassation appeal, such defect can be remedied – therefore, the cassation appeal cannot be rejected for that reason447.

According to Art. 3989 § 1 KPC, the Supreme Court shall admit the cassa-tion appeal for consideration if there is a significant point of law in the case con-cerned, there is a need for interpretation of laws which are questionable or which

444 See a decision of the Supreme Court of 19.7.2001, III CKN 44/99, Legalis.445 See a decision of the Supreme Court of 22.8.2000, IV CKN 111/00, OSNC 2001, No. 1, item 19.446 See: L. Bagińska, Skarga… [Cassation…], p. 79.447 See a judgment of the Polish Constitutional Tribunal of 1.7.2008, SK 40/07, OTK-A 2008,

No. 6, item 101.

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cause discrepancies in the case-law, the cassation appeal is obviously legitimate or the proceedings are invalid. The Supreme Court emphasized that the circum-stances which justify consideration of the cassation appeal should necessarily be presented in such a manner so that they can be separated and distinguished from other conditions of admissibility of the cassation appeal namely from the citation of grounds of the cassation and their reasons. The circumstances which justify consideration of the cassation appeal should therefore be clearly worded, with a reference to the applicable procedural laws and the conditions for a prelimi-nary examination of the cassation appeal [pre-judgment (przedsąd)] (Art. 3983 § 1 (2) and Art. 3989 KPC)448.

Indication of a significant point of law in the case concerned or the need for interpretation of the provisions which raise serious doubts should include formu-lation of the issue and presentation of arguments which lead to conflicting legal assessments, explanation why it is important or specification which provisions require interpretation by the Supreme Court, with an indication what the related concerns or discrepancies in the case-law of the courts are449. As highlighted by the Polish Supreme Court, an appellant filing a cassation appeal cannot merely repeat the wording of one or several statutory expressions he wishes to rely on as „circumstances justifying consideration of the cassation appeal”, but he is obliged to provide a professional, legal justification for the invoked circumstances which justify hearing of the cassation appeal in the context of factual and legal circum-stances of the case to which the cassation appeal relates450.

The point of law presented in the cassation appeal as the basis for its admis-sion for consideration must be related to the claim which is the subject-matter of the proceedings. A party cannot merely indicate any problem, separated from the subject matter of the pending case451. If a party indicated that the grounds of the cassation appeal is the need for interpretation of laws which are questionable or which cause discrepancies in the case-law, then the party should indicate that a specific provision, even if raises serious doubts, has not yet been interpreted or an inconsistent interpretation causes serious divergences in the case-law as speci-fied by the claimant. And it is not about a divergence between the courts hearing the case in which the judgment is challenged but a divergence regarding resolu-tion of several other similar cases.

448 See a decision of the Supreme Court of 19.12.2001, IV CZ 200/01, Legalis.449 See a decision of the Supreme Court of 8.7.2004, II PK 71/04, Legalis.450 See a decision of the Supreme Court of 13.5.2005, II PK 10/05, Legalis.451 Ł. Błaszczyk, Dopuszczalność skargi kasacyjnej w procesie cywilnym ze względu na wymaga-

nia formalne i konstrukcyjne (II) [Admissibility of a cassation appeal in the civil trial – formal and structural requirements (II)], Radca Prawny 2008, No. 4–5, p. 13 ff.


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If the application for admission of a cassation appeal for consideration is based on the claimant’s assertion that the cassation appeal is obviously legitimate (Art. 3984 § 1 (3) in connection with Art. 3989 § 1 (4) KPC), he should include in the reasoning of the application the legal arguments explaining such „obvious-ness” and present the arguments in support of the view that the cassation appeal is in fact legitimate452.

Apart from the structural requirements, a cassation appeal must also meet certain formal requirements prescribed for pleadings. According to Art. 3984 § 3 KPC the cassation appeal should:1) meet the requirements prescribed for a pleading,2) in matters regarding property rights, specify the value of the subject of the

appeal.A claimant who is not a General Prosecutor should file the cassation appeal

in 3 copies – for the opposite party, for the Supreme Court ad acta and for the General Prosecutor (Art. 3984 § 3 KPC). If there is more than one person on the part of the opposite party, the number of copies should increase respectively.

If formal defects of the cassation appeal are identified, the claimant should remedy them within one week otherwise the cassation appeal will be rejected.

14.7. Consideration of a cassation appeal – the procedureConsideration of a cassation appeal (skarga kasacyjna) may be divided into

three stages: a preliminary assessment of admissibility of a cassation appeal (wstępna ocena dopuszczalności), preliminary examination of the cassation ap-peal (the so-called pre-judgment (przedsąd)) and examination of the case on the merits (merytoryczne rozpoznanie sprawy).

The cassation appeal is reviewed twice in terms of its compliance with statu-tory requirements. First, by the court of the second instance which delivered the contested ruling, and second – by the Supreme Court.

According to the provisions of the Code of Civil Procedure, a court of the sec-ond instance will reject in closed session a cassation appeal lodged after a dead-line, a cassation appeal which does not meet the requirements laid down in Art. 3984 § 1 of the Code of Civil Procedure, as well as the cassation appeal for which a court fee was not paid and a cassation appeal the defects of which were not removed in due time or which for other reasons is inadmissible. A claimant is entitled to lodge a complaint against the decision of the court of the second instance to the Supreme Court (Art. 3941 § 1 KPC). The Supreme Court shall reject the cassation appeal which shall be rejected by the court of the second in-

452 See a decision of the Supreme Court of 26.4.2006, II CZ 28/06, Legalis.

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stance or returns it to that court to remove the identified defects (Art. 3986 § 3 KPC). A decision of the Supreme Court on rejection of the cassation appeal is not open to complaint.

In the absence of formal and structural defects, the court of the second in-stance will serve a copy of the cassation appeal on the opposite party. The oppo-site party may, within 2 weeks from the date of service of the copy, lodge a reply. A pleading lodged after that deadline does not constitute a reply to the cassation appeal; however, it is not returned and is kept in the files of the case. In response to the cassation appeal a party should comment on all the pleas in law invoked as the grounds of the cassation appeal and comment on the application for admis-sion of the cassation appeal for consideration453. In response to a cassation ap-peal, a party may file the following motions:1) a motion to reject (wniosek o odrzucenie) the cassation appeal,2) a motion to refuse admission of a cassation appeal for consideration,3) a motion to dismiss (wniosek o oddalenie) a cassation appeal.

It is also possible to submit alternative motions.Upon receipt of a proof of service of a copy of the cassation appeal on the op-

posite party, the court will immediately submit it, together with the files of the case, to the Supreme Court.

As mentioned above, the Supreme Court again performs a preliminary ex-amination of the cassation appeal. If it finds no defects in this respect the prelimi-nary examination of the cassation appeal (the so-called pre-judgment (przedsąd)) will follow. The preliminary examination of the cassation appeal (przedsąd) was introduced in the cassation proceedings because of the extraordinary nature of the latter and in order to reduce the number of cases heard by the Supreme Court454. Exceptionally, in the case of evidentiary procedure, a decision is is-sued by the court in camera by one judge. The preliminary examination of the cassation appeal (przedsąd) involves investigation of the circumstances listed in Art. 3989 § 1 KPC which justify admission of the cassation appeal for considera-tion. A decision on admission of a cassation appeal does not have to state its rea-sons. However, reasons must be given in case of a decision on refusal to admit the cassation appeal (and similarly on rejection of a cassation appeal)455.

A cassation appeal, in principle, is examined at in camera sitting by a panel of 3 judges. The Supreme Court examines the cassation appeal at a hearing when the case raises a significant point of law and the claimant requested examination

453 See: H. Pietrzykowski, Czynności… [Procedural…], p. 443–444.454 See: E. Gapska, Przedsąd w postępowaniu kasacyjnym w sprawach cywilnych [Pre-judgment

(przedsąd) in cassation proceedings in civil matters], PS 2006, No. 2, p. 2 ff.455 See a judgment of the Polish Constitutional Tribunal of 30.5.2007, SK 68/06, MoP 2007, No.

12, p. 642.


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of the cassation appeal. The Supreme Court may also examine the cassation ap-peal at the hearing without a respective request of the claimant where other rea-sons justify it (Art. 39811 § 1 KPC).

The Supreme Court considering the cassation appeal is bound by the limits of challenge and the grounds of the cassation appeal. In the course of the cassation procedure in labour law matters some of the provisions on separate proceedings do not apply. These include the provisions concerning:1) the oral form of the appeal and other pleadings (Art. 466 and 467 KPC in

connection with Art. 4751 KPC),2) preliminary inquiries (Art. 468 KPC in connection with Art. 4751 KPC),3) characteristics of a person representing the defendant at the hearing (Art. 470

KPC in connection with Art. 4751 KPC),4) time-limits for scheduling a hearing (Art. 471 KPC in connection with

Art. 4751 KPC)456.On the other hand, in the cassation procedure in labour law matters the

provisions governing a specific procedure for service of process and summons (Art. 472 KPC), provisions governing notifications in the case of establishment by the Supreme Court in the course of examination of a case of serious infringe-ments of law (Art. 474 KPC) and provisions on the consequences of party’s fail-ure to appear laid down in Art. 475 KPC – will apply457.

14.8. RulingsIf the Supreme Court admits the cassation appeal for consideration, it may

deliver the following rulings:– dismiss the cassation appeal – the Court will take such decision if it finds that

the cassation appeal is not well-founded or that the challenged ruling of the court of the second instance, despite incorrect reasons, is in compliance with law (Art. 39814 KPC),

– repeal the challenged decision in whole or in part and remand the case (Art. 39815 KPC),

– repeal the challenged judgment and rule on the merits (Art. 39816 KPC),– repeal the judgment of the court of the first and of the second instance and

dismiss the action or discontinue the proceedings (Art. 39819 KPC).

456 See: K.W. Baran, Procesowe… [Procedural…], p. 296.457 See: M. Mędrala, Funkcja ochronna… [The protective function…], p. 269.

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§ 15. Enforcement of judgments and settlement agreements in labour law matters

Marcin Wujczyk

A final court judgment or a valid settlement agreement should be imple-mented by certain bodies which were obligated to this under such judgment or settlement.

However, despite the existence of an act (judgment, settlement agreement) which indicates an obligation of a party to an employment relationship, not al-ways such party is willing to voluntarily comply with such judgment or settle-ment. In such case, in order to obtain a benefit due or to exercise a right it is usu-ally necessary to initiate an enforcement procedure.

Before going into further detail as regards the elements of the enforcement procedure in terms of labour law matters, it is worth noting that the legislature provides also for non-enforcement deduction of certain sums from the remu-neration of an employee .This applies to maintenance claims (roszczenia alimen-tacyjne). According to Art. 88 KP and in compliance with the rules laid down in Art. 87 KP, an employer shall make deductions from employee’s remuneration to satisfy maintenance claims also without an enforcement procedure. However, this is not possible where maintenance payments should be deducted in favour of several creditors and the total amount which can be deducted is not sufficient to cover all the maintenance claims and in the case of attachment of earnings in a judicial or administrative enforcement procedure. The procedure laid down in Art. 88 KP under which it is not necessary to initiate judicial or administra-tive enforcement procedure, does not apply to fines and penalties for breach of order in the workplace imposed in criminal proceedings458. Therefore – under Art. 88 KP – a creditor may, without initiating an enforcement procedure, request the employer of a debtor to deduct from the employee’s remuneration respective maintenance payments, upon presentation of an appropriate enforceable title. There is a view presented in the literature according to which an employer is not bound by such request and may refuse to make such deductions without stating reasons459. If the employer does not want to make such deductions, the creditor

458 See a resolution of the Supreme Court (7 judges) of 21.5.1981, V PZP 4/81, OSNCP 1981, No. 11, item 204 with a commentary of W. Siedlecki, OSPiKA 1982, No. 1–2, item 17.

459 See similar: T. Stręk, Indywidualne… [Individual…], p. 438.


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should initiate enforcement procedure460. In my opinion such standpoint is dis-putable. Where a possibility to enforce the claim is subject to a will of the em-ployer, it is contrary to the intention of this provision which is aimed at protec-tion of a creditor. Moreover, the expression „shall make deductions” used in this provision indicates that the employer is obliged to make such deduction and it is not discretionary.

The basis for commencement of the enforcement procedure is an enforceable title (tytuł wykonawczy). An enforceable title is an enforcement order with en-forceability clause (Art. 776 KPC).

In labour law matters the enforcement orders which constitute basis for com-mencement of the enforcement procedure include:– final or immediately enforceable judgment of a labour court,– court settlement,– out-of-court settlement. This applies in particular to settlement agreements

concluded in the course of a conciliation procedure (Art. 255 § 1 KP) and settlement agreements concerning compensation for damage caused to the employer (Art. 1211 § 1 KP). As regards the former, it is an enforceable title only for an employee against an employer and the latter – only for an employer against an employee.As a rule, a judgment may become an enforcement order only after it has be-

come valid and final. However, as regards labour law matters, there are a number of exceptions to this rule introduced for the protection of an employee. According to Art. 4772 § 1 KPC, a labour court awarding an amount due to an employee in labour law matters shall, ex officio, at delivery of the judgment, declare the judg-ment immediately enforceable in the portion not exceeding a full monthly remu-neration of the employee. The above regulation applies to the judgments under which an amount due to an employee was awarded to him within the meaning of Art. 476 § 5 (1) KPC. This provision is supplemented by Art. 4776 KPC. Un-der the latter provision, a judgment of the court of the first instance – awarding benefits in favour of an employee or members of his family – in relation to which the court of the second instance dismissed the appeal brought by the employing establishment, as well as a judgment of a court of the second instance awarding benefits in favour of an employee or members of his family, is immediately en-forceable also in the part which was not declared immediately enforceable by the court under Art. 4772 KPC. It is emphasized in the legal writings that the per-sonal scope (scope ratione personae) of Art. 4776 KPC is narrower than the scope of Art. 4772 KPC but it has a broader material scope (scope ratione materiae) (the

460 See: A.M. Świątkowski, Kodeks pracy. Komentarz [Labour Code. Commentary], Warsaw 2012, p. 440.

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term „benefit” used in this provision does not refer only to benefits in cash but it covers also non-financial claims awarded by a court)461.

Because of the type of benefits which are to be enforced, the enforcement pro-cedure may be divided into enforcement of benefits in cash and non-cash ben-efits. They will not be described in detail in this book. I will only analyse the is-sues which are most typical in terms of enforcement of judgments in labour law matters.

As regards enforcement of cash benefits in the relations between an employee and an employer, the most common example is attachment of earnings (attach-ment of remuneration for work) procedure (egzekucja z wynagrodzenia za pracę). However, very often, an employer is only responsible for deduction of sums from employee’s remuneration, and rarely is a creditor himself.

The attachment of earnings procedure is conducted by a court enforcement officer (komornik) at a district court of general competence at the place of resi-dence of the debtor (Art. 880 KPC). It should be noted that under the provisions of civil procedure the term „remuneration/earnings” has a broader meaning that in the provisions of labour law. In the course of the enforcement procedure the remuneration should mean in particular periodic remuneration for work and remuneration for contracted work, as well as awards and bonuses payable to the debtor for the period of his employment, as well as employment-related profits or shares in a company fund and any other funds connected with the employment relationship. The attachment of earnings (attachment of remuneration) proce-dure comprises three major activities:1) a court enforcement officer (komornik) informs a debtor that the latter may

not collect remuneration up to the amount of the enforced sums and until complete satisfaction of debt, apart from the amount which is not subject to the attachment, and that he may not otherwise dispose of such remuneration (Art. 881 § 2 KPC),

2) the court enforcement officer serves upon the work establishment a notice according to which the establishment shall not, within the statutory limits, pay any remuneration to the employee, apart from the portion which is not subject to the attachment, and that the establishment shall: – transfer the attached earnings directly to a creditor enforcing the claim

and inform the court enforcement officer of the first disbursement or,– transfer the attached earnings to the court enforcement officer in a situation

where the remuneration is or becomes in the course of further enforce-ment procedure subject to other attachment and the payable portion of the remuneration is not sufficient to satisfy all the enforced amounts due.

461 See: M. Mędrala, Funkcja ochronna… [The protective function…], p. 256.


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At the same time the court enforcement officer (komornik) shall advise the employer on the consequences of non-compliance with the abovementioned no-tice (Art. 881 § 3 KPC) – if the employer fails to comply with the notice he will be liable to a fine up to PLN 2 000. The employer who deducts the respective sums from the remuneration may do it only within the limits laid down in Art. 87–88 of the Labour Code (KP). The attachment remains effective even if a new em-ployment relationship or a new principal/contractor relationship is established with the debtor after the attachment or even where an undertaking was trans-ferred to another person if such person knew of that attachment of earnings (Art. 883 § 1 KPC). The attachment is effective also to a new work establishment if the debtor changed his place of work, in which case both the debtor and the new employer must inform the court enforcement officer of the change462.

As regards enforcement of non-cash benefits in labour law matters, the most interesting is enforcement of a judgment awarding reinstatement.

In its resolution of 28.5.1976 the Supreme Court held that a judgment award-ing reinstatement of an employee is of mixed nature: constitutive and declara-tory463. It may not be enforced by substitute performance because cooperation from the employer is necessary464.

As regards enforcement of judgments awa rding reinstatement of an employ-ee, there are several stages of the procedure. First, an employer is called, upon employee’s request, by a court which is the court at the place where the activity should be performed (usually the place of performance of work) – to allow the reinstated employee to work within a specified time limit, failing which the em-ployer will be liable to a fine. A court shall issue a respective decision after hear-ing the parties and the hearing may be in a form of submission of written state-ments by the parties (Art. 1050 § 1 KPC).

Further, if the employer fails to comply with this obligation within the pre-scribed time-limit, the court shall, upon employee’s request, impose a fine on the employer and shall set a new time-limit, failing which the employer will be li-able to a higher fine (Art. 1050 § 3 KPC). If within the new time-limit the debtor again fails to undertake the ordered action then the employee may request that new proceedings be conducted aimed at imposition of another fine(s) on the em-ployer until the sum of fines in the case in question is exhausted. In one decision a court may impose a fine not greater than PLN 10 000 unless a double imposi-tion of a fine appeared ineffective. A total sum of fines in one case may not exceed

462 A. Zieliński, Postępowanie cywilne. Kompendium [Civil Procedure. A compendium], Warsaw 2012, p. 325.

463 See a resolution of the Supreme Court of 28.5.1976, V PZP 12/75, OSNC, No. 1976, No. 9, item 187.

464 See: K. Korzan, Wykonanie… [Enforcement…], passim.

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PLN 1 000 000. If the debtor complies with the obligation or the proceedings are discontinued, the fines not paid by that date are remitted (Art. 1052 KPC). When imposing a fine, the court will at the same time rule – if the fine is not paid – on conversion of the fine into detention (areszt) where one day of detention should be counted as PLN 50 to PLN 1500 of a fine. A total duration of the detention in one case may not exceed 6 months. If the employer to which the court’s order is addressed is a legal person or other organisation, a person liable to be subject to the coercive measures is an employee responsible for failure to comply with the court’s order, and if identification of such employee is difficult, the persons liable to be subject to such measures are persons authorised to represent such legal per-son or organisation (Art. 1053 KPC).

If the enforcement procedure is discontinued or a debtor as a result of deten-tion declares his readiness to comply with the obligation, the court will decide to release him and will inform the creditor thereof. If the employer declared his readiness to perform the demanded activities, the court will set a deadline for such performance. If the employer who was released delays the compliance with the obligation, the court, upon creditor’s request, after hearing the parties, will order detention until the end of the previously set time-limit (Art. 1054 KPC).

In the abovementioned ruling of 28.5.1978 the Polish Supreme Court held that the fact of commencement of work by the employee should be exam-ined by the court (as an enforcement authority) in the enforcement procedure. This means that a court responsible for the enforcement should establish wheth-er the employee commenced work within the prescribed time-limit , and if not – whether the time-limit of 7 days referred to in Art. 48 § 1 KP was not observed due to reasons not attributable to the employee. The above view was criticised as not having the basis in the provisions of the Code of Civil Procedure465.

465 R. Borek-Cuchajczyk, M. Uliasz, Charakter prawny i wykonanie wyroku przywracającego d o p racy [Legal nature of a judgment awarding reinstatement], MoPr 2009, No. 1, p. 15.


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Chapter 8. Registration procedures in collective labour law

K.W. Baran

§ 1. General notes

In the Polish labour law system there are certain registration procedures in place. Their function is to provide guarantees and keep order1 in such sense that they institutionalise the industrial relations. This is because they allow the competent public authorities to supervise the legality of actions undertaken in the collective labour and employment relations by entities representing the em-ployees and the employers. Depending on the status of the registration body, the following model procedures can be distinguished:– judicial,– administrative and judicial,– administrative.

De lege lata, in the labour legislation there exist both the judicial and the ad-ministrative and judicial model. The former applies to trade union organisations and employers’ organisations and the latter applies to collective agreements.

§ 2. Registration of trade unions and employers’ organisations

Under Art. 2 of ILO Convention no. 87 both workers and employers have the right to establish trade unions and employers’ organisations without prior au-thorisation. The starting point for further deliberations will be an observation

1 See: K.W. Baran, Zbiorowe… [Collective…], p. 26–28.

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that in the normative systems of some of the states of industrial civilisation there are certain registration procedures in place which are intended to guarantee le-gal certainty in labour relations. They are either optional or obligatory2. The op-tional registration system means that registration is voluntary. The founders of an organisation should decide themselves whether they want to register it or not. Such act, sometimes referred to as notification, consists in filing an application for registration of a newly established organisation to the register kept by pub-lic authorities or by public administration bodies which allows obtainment by such organisation of a privileged status in the subsequent course of its activity. The obligatory registration system means a legal obligation to enter the newly established organisation (trade union, employers’ organisation) to a register kept by public authorities or by public administration bodies.

A problem arises whether the registration procedure does not directly under-mine the directive expressed in Art. 2 of the ILO Convention no. 87. I think that the answer should be negative3. A key argument is that the mentioned provi-sion of the Convention only prohibits advance control („consent”) which is pre-ventive in nature. Under the Polish laws the registration procedure is carried out already after the establishment of an organisation.

Under the Polish legislative system a trade union/ employers’ organisation is subject to mandatory registration in the National Court Register (Krajowy Rejestr Sądowy, KRS), in the register of associations and other social organisations, foun-dations and public healthcare facilities. Under Art. 7 of the Act on the National Court Register (KRS), the procedure in such cases is carried out by a registration court according to the provisions of the Code of Civil Procedure relating to non-contentious proceedings. According to Art. 6942 KPC, an exclusive jurisdiction is granted to a district court – commercial department at the seat of the party to whom the entry relates. The court acts under the provisions governing non-con-tentious proceedings. The matters concerning registration of trade unions and employers’ organisations are not labour law matters within the meaning of Art. 476 § 1 KPC since they cannot be classified into any of the five categories of mat-ters defined in that provision. For that reason the provisions of Art. 459–4777 of the Code of Civil Procedure do not apply to this category. In my opinion such

2 See in particular: Z. Hajn, Skutki prawne rejestracji związków zawodowych i organizacji pra-codawców [Legal consequences of registration of trade unions and employers’ organisations], PS 1993, No. 5, p. 21 ff.; T. Zieliński, Prawo pracy... [Labour Law...], p. 299–300.

3 The fact remains that at the functional level the registration is a measure restricting the freedom of association. See in particular: T. Zieliński, Prawo pracy... [Labour Law…], p. 299 and W. Sanetra, W kwestii rejestracji związków zawodowych [Registration of trade unions], PS 1992, No. 1, p. 3–5; M. Seweryński, Problemy... [Problems...], p. 9–10; T. Liszcz, Związki zawodowe po nowemu [Trade unions – a new perspective], PiZS 1992, No. 1, p. 31.


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matters should be classified as labour law matters within the meaning of Art. 1 KPC. This conclusion results from the fact that the material scope of labour law matters defined in Art. 1 KPC is much broader than this defined in Art. 476 (1) KPC. The difference relates, among others, to certain registration matters in col-lective labour law.

An application for entry4 of an organisation (trade union, employers’ organ-isation) into the National Court Register (KRS) is filed by a founding commit-tee. If the committee fails to file the application within 30 days of establishment of the organisation, the founding resolution is repealed5. Under Art. 6943 § 2 KPC the entity subject to the entry in the register enjoys the status of a partici-pant in the proceedings.

The registration procedure is aimed at verification whether an organisation concerned is a trade union or employers’ organisation. In this respect, a found-ing resolution setting out the objectives and tasks of the organisation, as well as its constitution are of key importance. In particular, the registration court (Art. 23 (2) of the Act on the National Court Register) must examine whether the data correspond with the facts. However, it does so only in the case of rea-sonable doubts. The documents on the basis of which the entry is made in the National Court Register should be submitted in original or officially certified copies or abstracts. According to Art. 23 (1) of the Act on the National Court Register they should be verified in terms of compliance of their form and con-tents with law.

A particular object of investigation by the registry court is a constitution (stat-ut) of a trade union or employers’ organisation. It regulates their organisation and the rules of their functioning. It must include a number of provisions specified in detail in Art. 13 of the Act on trade unions (ustawa o związkach zawodowych) and Art. 8 of the Act on employers’ organisations (ustawa o organizacjach praco-dawców), otherwise the registration will be denied.

The necessary provisions of the constitution (statut) of a trade union and of employers’ organisation are as follows: – data identifying a trade union in legal relationships, in particular a name,

registered seat and the personal and territorial scope of operations (Art. 13 (1), (2) and (3) of the Act on trade unions and Art. 8 (1)(1) of the Act on employers’ organisations),

4 According to Art. 19 (2) of the Act on the National Court Register the application for entry should be filed on an official form. See more in: K.W. Baran, Zbiorowe prawo pracy. Komentarz [Col-lective labour law. Commentary], Warsaw 2010, p. 182–183 and a literature referenced there.

5 See Art. 24 of the Act on the National Court Register.

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– objectives and the rules of operation of a union and the methods and forms of their fulfilment (Art. 13 (4) of the Act on trade unions and Art. 8 (1)(3) of the Act on employers’ organisations),

– organisational structure, in particular indication of the organisational units with legal personality (Art. 13 (7) of the Act on trade unions and Art. 8 (1)(2) of the Act on employers’ organisations),

– the method of representation6, in particular the persons authorised to assume financial obligations on its behalf (Art. 13 (8) of the Act on trade unions and Art. 8 (1)(6) of the Act on employers’ organisations),

– rules of operation of a union, in particular the legal mechanisms for election of governing bodies and their term of office (Art. 13 (9) of the Act on trade unions and Art. 8 (1)(2) of the Act on employers’ organisations),

– status of members, in particular their rights and obligations (Art. 13 (5) and (6) of the Act on trade unions and Art. 8 (1)(4) and (5) of the Act on employers’ organisations),

– the sources of financing of a trade union, in particular the method for deter-mining membership fees (Art. 13 (10) of the Act on trade unions and Art. 8 (1)(8) of the Act on employers’ organisations),

– rules for adoption of amendments to the statute (charter) (Art. 13 (11) of the Act on trade unions and Art. 8 (1)(7) of the Act on employers’ organisations),

– the method of dissolution of a union or liquidation of its property (Art. 13 (12) of the Act on trade unions and Art. 8 (1)(7) of the Act on employers’ organisa-tions).The above list of elements of the constitution7 of a trade union is not enu-

merative8. Therefore, in my opinion there are no normative obstacles that would prevent including other regulations on the functioning of an organisa-tion in its constitution. It should also be kept in mind that these cannot be con-trary to law (for example they should not introduce mechanisms which allow discrimination).

6 According to a standpoint presented by the Polish Supreme Court in a decision of 17.4.1996, I PRZ 2/96, OSNAPiUS 1996, No. 21, item 325, persons who, as a result of election of new bodies, are no longer a chairperson or a vice-chairperson of a trade union, are not authorised to act in the name of that trade union before a court, including to file an application for revision (skarga o wznowienie postępowania).

7 See: Z. Hajn, Charakter prawny statutu związku zawodowego i stosunku członkowstwa w związku zawodowym [Legal nature of a constitution of a trade union and of a membership in a trade union], [in:] A. Sobczyk (ed.), Księga pamiątkowa z okazji jubileuszu 40-lecia pracy naukowej Profe-sor Barbary Wagner [A memorial book for the 40th anniversary of academic work of professor Barbara Wagner], Warsaw 2010, p. 131 ff.

8 J. Jończyk, Prawo pracy [Labour law], Warsaw 1995, p. 173.


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Following the above general characteristics of a trade union constitution (stat-ut), I should now discuss in more detail some of its elements. The first one is the name of a trade union. According to a standpoint presented by the Polish Su-preme Court9 in a decision of 5.6.1996, a trade union is free to choose its name, however, such name should ensure its sufficient identification in the legal and social relations. In another ruling the Supreme Court10 held that a trade union may be registered if its name is similar to a name of another trade union pro-vided that such name allows for its identification11. A designation of a registered seat of a trade union has a similar function. It should be emphasized that a name of a trade union is a personal right which, when violated, is subject to protection under the civil law12.

A constitution of a trade union or employers’ organisation should specify the territorial scope and the material and personal scope of its operations. In this context the fact that the Act on employers’ organisations does not explicitly re-quire that a constitution of employers’ organisation should specify the personal scope should be considered a defect. As regards the material scope, a decisive element is always the objectives and tasks of an organisation concerned. They prejudge the question of whether an organisation concerned can be considered a trade union or employers’ organisation. In each case, the said objectives and tasks must correlate with the functions defined in the legislation for the organisa-tions of that kind. Also the methods and forms of achievement of such objectives and fulfilment of such tasks must be coherent with the statutory competences of trade unions and employers’ organisations13.

A constitution of a trade union should also clearly specify its organisational structure. In practice, there are usually four bodies:– a general meeting of members or their delegates (for example a congress of

delegates),– a managing body, usually called a management board or a presidium (for

example a national commission, a works commission, a works council),– a control body, usually called an audit committee,– a disciplinary body (such as a peer tribunal (sąd koleżeński) in trade unions).

9 I PR 1/96, OSNAPiUS 1997, No. 13, item 243 with a commentary of J. Stelina (OSP 1997, No. 12, item 216).

10 OSNAPiUS 1997, No. 13, item 244.11 Mutatis mutandis, this applies also to employers’ organisations.12 See a judgment of the Court of Appeal in Poznań of 30.7.1991, I Acr 157/91, Wok. 1992, No.

3, item 27.13 More details in: J. Piątkowski, Uprawnienia… [Rights…], passim; Z. Salwa, Uprawnienia

związków zawodowych [Rights of trade unions], Bydgoszcz 1998, passim.

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As regards this part of the constitution, it is now necessary to specify which of the organisational units of a trade union14 have legal personality15. This issue is directly connected with the mechanisms of representation of a trade union. For practical reasons it is important to indicate the persons authorised to as-sume financial obligations on behalf of a trade union. As a result, a trade union may act not only through its statutory bodies but also through its representative or an attorney.

An important element of each constitution of a trade union should be the rules of its functioning. It should set out not only the internal organisational pro-cedures but also the rules of election of the governing bodies, the terms of office and the powers of the bodies. The mechanisms are designed to foster respect of rights of individual members by the organisation.

A trade union constitution should specify the rights and obligations of its members. This applies in particular to: – acquisition and loss of membership,– active and passive voting rights,– right to trade union benefits,– use of expert advice,– participation in trade union actions.

In practice, a significantly important element is provisions governing obtain-ment of union membership. As regards trade unions, particularly important are the internal organisational regulations relating to the unemployed since Art. 2 (4) of the Act on trade unions makes reference to the provisions of statutes.

At this normative level a problem arises whether a statute (constitution) may restrict the material scope of the freedom of association defined by law. In the context of the provisions of Art. 3 of the ILO Convention no. 87 which provides that both workers’ and employers’ organisations shall have the right to draw up their constitutions in full freedom, introduction of such restrictions is accept-able provided that they are not intended to discriminate16, in particular on the ground of sex, age, race, religious beliefs and political opinions.

14 See a judgment of the Polish Supreme Court of 27.3.2007, II PK 241/06, OSNP 2008, No. 8–9, item 125.

15 See more in: R. Nadskakulski, Związkowa reprezentacja zbiorowych praw i interesów (wybrane zagadnienia) [Trade union representation of collective rights and interests (selected problems)], [in:] G. Goździewicz (ed.), Reprezentacja praw i interesów pracowniczych [Representation of workers’ rights and interests], Toruń 2001, p. 102–103.

16 See in particular: I. Boruta, Zakaz dyskryminacji w stosunkach pracy [Prohibition of dis-crimination in labour relations], [in:] H. Lewandowski (ed.), Polskie prawo w okresie transformacji w oświetleniu prawa wspólnotowego [Polish law in the period of transformation in the light of the Com-munity law], Warsaw 1997, passim.; L. Florek, Zakazy dyskryminacji w stosunkach pracy [Prohibition of discrimination in labour relations], PiZS 1997, No. 1, passim.


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The constitution of a trade union should also govern the sources of its financ-ing. These include membership fees, donations, legacies, income from trade un-ion assets and operating profits of the union. A properly drawn up constitution should specify in detail which of the trade union’s bodies are responsible for man-aging the assets and use of the assets by the members.

Moreover, the laws in force provide for an obligation to include in the constitu-tion the provisions governing the rules for its amendment (for example by a reso-lution of the general meeting adopted by 2/3 of valid votes in the presence of at least half of the members) and the method of dissolution of the union. The consti-tution should also specify the mechanism for liquidation of union’s assets.

It must be emphasized that the registration court is not entitled to amend the constitution of an organisation, either in a form of additions or in a form of dele-tions. However, such powers are granted to the founding committee. Such inter-pretation is supported mainly by teleological arguments.

Entry of an organisation (trade union, employers’ organisation) into the Na-tional Court Register (KRS) is made on the basis of a constitutive decision. It is effective as to the merits and enforceable as of the date of its issuance. If the deci-sion is in compliance with an application, no reasoning is necessary17.

As of the date of registration, an organisation (trade union, employers’ or-ganisation) obtains legal personality. This refers also to the statutory (named in the constitution)18 internal organisational units19. A question arises whether the registration is a necessary condition for obtainment of a status of an organi-sation (trade union status, employers’ organisation status) within the meaning of the Act on trade unions or the Act on employers’ organisations or such status may be obtained also by non-registered organisations20. A starting point for the analysis should be an argument that a trade union or employers’ organisation exists on the basis of a „founding” resolution21. However, until registration, the organisation is temporary. The root of the problem lies in the question on what basis – a founding resolution or a deed of registration – the union obtains the right to act. I share the22 view according to which it obtains such right only upon registration. Otherwise both the registered and the non-registered organisations would operate in the industrial relations. If a situation was accepted where non-

17 See Art. 6945, 6946 KPC.18 See a judgment of the Polish Supreme Court of 16.2.2007, II PK 196/06, OSNP 2008, No. 7–8,

item 94.19 See a judgment of the Polish Supreme Court of 9.3.2001, V CK 230/03, Legalis.20 See in particular: T. Liszcz, Związki... [Trade…], p. 31; Z. Hajn, Skutki... [Consequences...],

p. 31; M. Seweryński, Problemy... [Problems...], p. 119.21 See a decision of the Court of Appeal in Warsaw of 30.11.1995, I ACr 857/95, OSA 1996,

No. 4, item 15.22 Z. Hajn, Skutki... [Consequences...], p. 22.

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registered entities operated in the labour and employment relations, the registra-tion laws and the laws governing the rules for establishment of unions (for ex-ample those defining the limit of the founders) would to a large extent become irrelevant. As a result the entities whose purpose is not protection of rights and interests of workers or employers could act as trade unions/employers’ organi-sations. There could also be a risk of occurrence of various abuses, in particular fraud (e.g. wrongful obtainment of contributions).

§ 3. Registration of collective agreementsUnder Art. 24111 of the Labour Code, collective agreements are subject to reg-

istration. The procedure is public and mandatory. The registration is a conditio sine qua non for entry of a collective agreement into force. A collective agreement which is signed but not registered has no legal force. For the parties it is merely a gentlemen’s agreement.

According to Art. 24111 § 1 of the Labour Code, a collective agreement is sub-ject to entry in a register kept for:– sectoral agreements (układy ponadzakładowe), by a competent minister of

labour matters,– company-level agreements (układy zakładowe), by a competent regional labour

inspector.The authorities mentioned above keep registers of collective agreements. En-

tries in the registers are made upon request of one of the parties to the collective agreement, unless the laws provide otherwise. In practice, it means that a respec-tive request may be filed both by a trade union and by an employer or employ-ers’ organisation.

According to applicable implementing provisions, an application for registra-tion should be filed in writing and accompanied by at least four copies of the col-lective agreement. The application should include the information on:– the date and place of conclusion of the collective agreement,– the date of entry of a collective agreement into force,– fulfilment by the parties of the conditions required for conclusion of the agree-

ment (for example a capacity to be a party to a collective agreement),– term of the collective agreement,– territorial scope of the collective agreement.

If the application for registration of a collective agreement does not meet the requirements mentioned above, the registration authority will not consider the application but will return it to the applicant with a written justification of the refusal to consider it.

§ 3. Registration of collective agreements

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A legally concluded collective agreement is subject to registration within:– three months – in the case of sectoral collective agreement (układ ponad-

zakładowy),– one month – in the case of company-level collective agreement (układ zakła-

dowy),– from the date of filing the application.

In the registration procedure the collective agreement is subject to control in terms of legality of its provisions. If in the course of the registration procedure it is found that the provisions of a collective agreement are contrary to law23, the registration authority will suspend the procedure and will demand that the par-ties make appropriate amendments within 14 days. Such demand shall be served upon the parties in writing and shall specify the provisions of the agreement found to be contrary to law. The registration authority, upon establishing that the provisions of the collective agreement are in breach of law, may also, upon consent of the parties, enter the collective agreement in the register with the ex-clusion of the defective provisions. There is an opinion presented by legal com-mentators24 according to which this does not apply to the essential provisions of a collective agreement without which it could be assumed that the agreement would not be concluded at all. Also in the situation where the parties have no ca-pacity to be parties to a collective agreement or where a collective bargaining pro-cedure has been violated, the collective agreement cannot be registered.

Failure of the parties to the collective agreement to make the respective amendments to the provisions of the agreement or refusal to give consent for en-try of the collective agreement with the exclusion of the provisions contrary to law shall be the basis for issuance of a decision on refusal to register the collec-tive agreement by the registration authority. The parties should be notified of the refusal to enter the agreement in the register of collective agreements in a written form. The notification should specify the reasons of the refusal and information on the remedies available.

According to Art. 24111 § 5 KP, within 30 days of notification of the parties on the refusal to register the collective agreement they are entitled to lodge an appeal:– the parties to a supra-company collective agreement – to a Regional Court

– Court of Labour and Social Insurance in Warsaw,

23 See more in: A. Hintz, Doświadczenia… [Experiences…], p. 31; W. Sanetra, W sprawie reje-stracji niezgodnego z prawem układu zbiorowego pracy [Registration of an unlawful collective agree-ment], PiZS 1996, No. 2, p. 38 ff.

24 See: G. Goździewicz, Układy zbiorowe pracy. Regulamin wynagradzania. Regulamin pracy. Komentarz [Collective agreements. Wage rules. Work rules. A commentary], Bydgoszcz 1996, p. 122.

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– parties to a company-level collective agreement – to a competent court at the seat of employer – labour court.The deadline of 30 days is preclusive. It may be neither shortened nor extend-

ed. Moreover, the rights with respect to such time-limit cannot be re-established by the court. The provision of Art. 168 KPC does not apply.

The appeal by the parties25 against a decision of the registration authority is in fact an application for opening non-contentious proceedings. Therefore, it should meet the requirements laid down in the provisions governing the state-ment of claim, except that instead of a defendant there should be interested par-ties indicated (Art. 511 KPC in connection with Art. 24111 § 5 second sentence of the Labour Code). It is out of the question that the interested parties in such category of matters are the parties to a collective agreement and the registration authority (Art. 510 KPC in connection with Art. 24111 § 5 second sentence of the Labour Code).

Matters regarding refusal to register a collective agreement are not labour law matters within the meaning of Art. 476 § 1 KPC since they cannot be in-cluded in any of the categories defined there. For that reason the provisions of Art. 459–4777 of the Code of Civil Procedure do not apply to this category. In my opinion such matters should be classified as labour law matters within the mean-ing of Art. 1 KPC. This conclusion results from the fact that the material scope of labour law matters defined in Art. 1 KPC is much broader than this defined in Art. 476 (1) KPC. The difference relates, among others, to certain matters con-cerning collective agreements.

In a matter regarding refusal to register a collective agreement a labour court of the first instance issues a decision. Because of the fact that this is a ruling on the merits (Art. 518 KPC)26, the parties have the right to appeal. In the case of a sectoral collective agreement, the appeal is heard by a Department of Labour and Social Insurance of the Court of Appeals in Warsaw, and in the case of a com-pany-level collective agreement – a Department of Labour and Social Insurance of a territorially competent regional court. Other decisions27 issued in the pro-ceedings before a court of the first instance may, in the cases specified by law, be challenged by complaint/grievance (zażalenie).

25 See a judgment of the Polish Supreme Court of 4.4.2002, I PKN 262/01, OSNP 2004, No. 6, item 97 and a decision of the Supreme Court of 11.1.2011, I PK 166/10, OSNP 2012, No. 7–8, item. 95.

26 See a resolution of the Polish Supreme Court of 16.3.1994, I PZP 8/94, OSNAPiUS 1994, No. 2, item 23. See also A. Zieliński, Zwyczajne środki zaskarżenia (odwoławcze) w postępowaniu nie-procesowym [Ordinary appeal in non-contentious proceedings], MoP 2002, No. 2, p. 55.

27 See a decision of a Court of Appeals in Łódź of 18.5.1993, I ACr 198/93, OSA 1993, No. 11, item 80.


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A decision on the merits of the court of the second instance on the refusal to register a collective agreement may not be challenged by a cassation appeal. This standpoint is a consequence of application to Art. 5191 § 3 KPC of a con-trario argumentation and determination that the provisions of Part One Title Two of the Code of Civil Procedure do not provide in the non-contentious pro-ceedings for the possibility to change or repeal a valid decision on the refusal to register a collective agreement. Also § 3 of Art. 5191 KPC does not apply to this category of matters since it relates only to judicial registration procedures as is evident from its literal wording.

According to § 5 of Art. 24111 KP an interested party may, within 90 days of the date of registration of a collective agreement, enter a objection with the au-thority who registered the agreement claiming that the agreement had been con-cluded in breach of the provisions on concluding collective agreements. Such ob-jection should be made in writing and should state the reasons. Pursuant to § 51 of Art. 24111 KP the basic conditions under which the proceedings may be initi-ated include existence on the part of the person (entity) entering the objection of a legal interest resulting from breach of the provisions governing conclusion of collective agreements. It is not necessary for such entity to be a party to a collec-tive agreement. Moreover, it seems that in practice these will be in particular the entities (persons) who do not participate – for various reasons – in the collective bargaining. I am thinking here mainly of trade unions illegally discriminated in the collective agreement procedures or workers covered by illegal differentiation clause. The mentioned provision seems to be a useful normative instrument for workers’ organisations not informed or improperly informed of the pending col-lective bargaining.

In my opinion the time-limit of 90 days is a strict deadline (termin zawity). After the deadline has passed, the objection can no longer be entered. The regis-tration authority cannot disregard the fact that 90 days have passed since the date of registration. As with other strict deadlines, after the above deadline has passed the entitled party is definitely deprived of the possibility to nullify the collective agreement. There are no exceptions to this rule since Art. 24111 § 51-5 of the La-bour Code does not provide for any competence of the registration authority to disregard the time-limit because of the fact that the delay in pursuing a claim has not been excessive and has been justified by exceptional circumstances28.

To sum up the above deliberations, it should be stated that under Art. 24111 § 51 KP an entitled person may effectively enter an objection within 90 days of the date of registration of a collective agreement. If the time-limit is exceeded the objection will be dismissed by the registration authority.

28 See: K.W. Baran, Rejestracja… [Registration…], p. 21.

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If the time-limit is observed, the registration authority should, within 14 days of receipt of the objection29, call upon the parties to the collective agreement to submit documents and provide explanations necessary for the examination of such objection. The purpose of such procedure is to clarify whether the parties breached applicable laws in the course of the collective bargaining. If it is estab-lished that a collective agreement was concluded in breach of the applicable laws, the authority in charge of the registration procedure will call upon the parties to remedy the defects within 14 days (Art. 24111 § 53 KP). Otherwise, if:– the parties fail to submit, within a prescribed period, not shorter than 30 days,

the documents and explanations referred to in Art. 24111 § 52 KP,– the parties fail to remedy the defects within a prescribed period, not shorter

than 30 days,– it is not possible to remedy the defects (for example because of a lack of capacity

to be a party to a collective agreement),– the registration authority will delete the collective agreement from the register

of collective agreements. The appeal against such decision is heard by a court.The decision on deletion of a collective agreement from the register does not

result in automatic change of the terms and conditions of employment of em-ployees covered by such agreement. According to § 55 of Art. 24111 KP the terms and conditions of contracts of employment or other acts under which an employ-ment relationship was established apply until termination of such terms and con-ditions. In practice it means that an employer willing to reduce the obligations imposed on him in respect of employment benefits should terminate the terms and conditions of employment under Art. 42 KP. Under Art. 24111 § 55 second sentence of the Labour Code the provisions of Art. 24113 § 2 second sentence KP will apply in such case. This means that the provisions on the special protection of sustainability of employment relationship, which limit the admissibility of giv-ing a notice of termination of the terms and conditions of employment, will not apply. The Labour Code does not address the obligative and social provisions of a collective agreement. It seems that they cease to have effect once the decision on deletion of the agreement from the register becomes final. Such interpreta-tion is justified by the argument that a collective agreement deleted from a reg-ister ceases to have effect.

The main function of the registration procedure is to control provisions of a collective agreement in terms of their compliance with applicable laws. It is also worth noting that the purpose of the registration is to re-establish legal cer-tainty in the labour relations. It is because the parties concerned may precisely specify the contents of the collective agreement. As a result, this contributes in-

29 This applies to an administrative authority.


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directly to protection of interests of all actors in the labour relations. This func-tion is fulfilled also by the principle of openness of the registration documenta-tion. According to § 12 of a regulation of the Minister of Labour and Social Policy (MPiPS) of 4.4.200130, anyone may consult the registration charts, a collection of collective agreements and registration files under a supervision of an authorised employee. The above right is not subject to the existence of a legal interest of an interested party as was the case under the previously applicable laws31.

The registration authority keeps the originals of the registered collective agreements and maintains separate registration files for each collective agree-ment. According to § 9 (1) of a regulation of the Minister of Labour and Social Policy (MPiPS) of 4.4.2001, upon request of one of the parties, the information regarding the following should be entered in the register of collective agreements:– notice of termination of a collective agreement,– termination of a collective agreement,– the date of cessation of application of provisions of the terminated collective

agreement if the agreement specifies a date different from the effective date of a new collective agreement,

– conclusion by the parties to the collective agreement of an agreement specifying the date by which the provisions of the terminated collective agreement are applicable,

– division, merger, dissolution or liquidation of organisations or other entities who entered into the collective agreement,

– assumption by another employer or other entity of the rights and obligations of the parties to a collective agreement,

– assumption by a trade union organisation of the rights and obligations of a party to a concluded collective agreement,

– transfer of rights and obligations of the parties to a sectoral collective agree-ment to another minister or a central administration body,

– suspension of a collective agreement,– non-application of a collective agreement by an employer in the event of dis-

solution of employers’ organisation or all trade union organisations who are parties to such collective agreement,

– change of name or a registered seat by a party who entered into a collective agreement.

30 Journal of Laws [Dz.U.] of 2001, No. 34, item 408.31 See § 12 of a regulation of the Minister of Labour and Social Policy (MPiPS) of 15.11.1994

on the detailed procedure for registration of collective agreements and a sample register of collective agreements (rozporządzenie w sprawie szczegółowego postępowania w sprawie rejestracji układów zbi-orowych pracy oraz wzoru rejestru tych układów) (Journal of Laws [Dz.U.] of 1994, No. 123, item 606).

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An exception to the rule that entries in the register are made upon request of the parties is the obligation to enter ex officio the following information into the register:– extension of the scope of application of a sectoral collective agreement

(Art. 24118 KP),– annulment of the extension of the scope of a sectoral collective agreement,– deletion of a collective agreement from the register under Art. 24111 § 54 KP.


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Chapter 9. Collective labour disputes

Justyna Czerniak-Swędzioł, K.W. Baran, M. Wujczyk

§ 1. Subject-matter of a collective dispute

Justyna Czerniak-Swędzioł

1.1. IntroductionThe labour disputes are an intrinsic part of the market economy. A state is

unable to prevent them in such a way as to ensure a permanent social peace, it must, however, promote the social dialogue and create the mechanisms to pro-mote peace in the labour and employment relations1. A „collective dispute” is a key concept since it sets out the scope of application of the Act on resolution of collective disputes (ustawa o rozwiązywaniu sporów zbiorowych)2, and the basic elements of its definition are included in Art. 1 of this act. There have been opin-ions presented by the legal commentators3 according to which Art. 1 of the Act on resolution of collective disputes does not lay down a definition of a collective dispute but merely specifies the causes of collective disputes permitted by law and specifies some of the participants in a collective dispute. The definition included in the act in question is called a partial definition since it specifies only some of the conditions for belonging to the scope of the defined concept, such as a col-lective nature of a dispute, parties to a dispute and a subject-matter of a dispute.

1 See: B. Cudowski, Rola państwa w rozwiązywaniu sporów zbiorowych [The role of state in resolution of collective disputes], PiP 1994, No. 10, p. 65.

2 Act of 23.5.1991 on resolution of collective disputes [ustawa z 23.5.1991 roku o rozwiązywaniu sporów zbiorowych] (consolidated text: Journal of Laws [Dz.U.] of 2015, item 295 as amended), further called the collective disputes act.

3 See: W. Masewicz, Prawna regulacja sposobów rozwiązywania sporów zbiorowych w świetle praktyki. Doświadczenia polskie [Legal regulation of the methods of resolution of collective disputes in practice. Polish experiences], PiZS 1994, No. 2, p. 8.

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Therefore, the mentioned provision does not include an exhaustive and clear def-inition of a collective dispute but merely its basic elements4.

A collective dispute may relate both to workers’ interests in a broad sense, and to application or interpretation of legal provisions governing the collective rights and freedoms5. In practice, there may be disputes which relate in part to rights (rights disputes) and in part to interests (interests disputes)6. A collective labour dispute between workers and employer(s) may relate to working conditions, wag-es or social benefits and trade union rights and freedoms of workers or of other groups who enjoy the freedom of association in trade unions7. The above list is enumerative. Therefore, any disputes over non-employment interests where pres-sure is put not on the employer but on the central and local authorities and ad-ministrative or judicial bodies, are illegal. This will be discussed further in this chapter. A collective dispute relates to a certain collectivity, to interests of a larger group of employees (usually to all or part of personnel of a work establishment). The plural form distinguishes a collective dispute from an individual dispute8. However, it seems not possible to ascertain in absolute terms, in a particular case, whether a specific conflict is an individual dispute or a collective dispute. It re-sults from the fact that disputes in the workplace often have multiple dimensions. Many times it is a decision of the parties, in particular the employees, which de-termines the procedure for resolution of a dispute and hence its legal nature. In the Polish legislation the individual procedure and the collective procedure are autonomous; however, some of the authors9 give priority to court proceedings in labour law matters. A subject-matter of a collective labour dispute is, apart from the workers, a substantial element determining the collective nature of the

4 A. Sobczyk, A. Daszczyńska, Dialog społeczny jako narzędzie zbiorowego prawa pracy [So-cial dialogue as a tool of collective labour law], [in:] J. Stelina (ed.), Dialog społeczny w praktyce przedsiębiorstw [Social dialogue in the practice of undertakings], Gdańsk 2010, p. 17 ff.

5 K.W. Baran, [in:] K.W. Baran (ed.), Zbiorowe prawo pracy. Komentarz [Collective labour law. Commentary], Warsaw 2016, p. 365; idem, Wolności związkowe i ich gwarancje w systemie usta-wodawstwa polskiego [Trade union freedoms and their guarantees in the Polish legislative system], Bydgoszcz–Cracow 2001, p. 110 ff.

6 See: S. Mateja, Zatarg… [Collective…], p. 24 ff.; K.W. Baran, Spór indywidualny a spór zbi-orowy w prawie pracy [Individual dispute vs. collective dispute in labour law], [in:] G. Goździewicz (ed.), Zbiorowe prawo pracy w społecznej gospodarce rynkowej [Collective labour law in the social market economy], Toruń 2000, p. 224 ff.

7 B. Cudowski, Pojęcie i przedmiot sporu zbiorowego [A concept and a subject-matter of a collec-tive dispute], PiZS 1995, No. 11, p. 31 ff.; H. Lewandowski, Spory zbiorowe pracy. Pojęcie, przedmiot i strony sporu zbiorowego [Collective labour disputes. A concept, a subject-matter and parties to a col-lective dispute], Studia z zakresu prawa pracy i polityki społecznej 1997–1998, p. 127 ff.

8 J. Żołyński, Ustawa o rozwiązywaniu sporów zbiorowych. Komentarz. Wzory pism [Act on resolution of collective disputes. Commentary. Sample documents], Warsaw 2012, p. 21.

9 A.M. Świątkowski, [in:] J. Wratny, K. Walczak (eds), Zbiorowe prawo pracy. Komentarz [Col-lective labour law. Commentary], Warsaw 2009, p. 285.


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dispute. It is closely related to the workers’ collectivity and it is the essence of their common, undivided demand. In this respect it is an undisputable fact that a collective dispute is distinct from an individual dispute10. Although the Act on resolution of collective disputes does not provide for the entitlement to extend a subject-matter of a collective dispute, in the course of such dispute, to include claims other than those originally raised, nevertheless such possibility is accept-ed by jurisprudence11.

Specification of the subject-matter of a collective dispute is subject to cer-tain limitations. First, according to Art. 4(1) of the collective disputes act a col-lective dispute cannot serve to support individual demands of employees if they can be resolved in a procedure before an authority resolving disputes over em-ployees’ claims. This means that collective disputes cannot refer to individual demands, both these involving claims and these not involving claims12. Accord-ing to Art. 4 (2) of the collective disputes act, if a collective dispute concerns the content of a collective agreement or other arrangement to which a trade un-ion organisation is a party, the dispute concerning an amendment of the agree-ment or the arrangement may be initiated and conducted not earlier than on the date on which they are terminated. It is maintained that the above provision ap-plies both to the agreements concluded under law and those concluded without a statutory authorisation13. The said provision applies both to company-level collective agreements and arrangements and to sectoral (sector-level) collective agreements. Such opinion is justified on such basis that Art. 4 (2) of the collec-tive disputes act does not lay down any restrictions as to the type of collective agreements and arrangements which may be the subject of a dispute. Moreover, the wording of the said provision precludes the possibility to initiate a collective dispute regarding amendment of such agreement or arrangement which is not subject to termination14.

According to the dispute documentation submitted to the Department of So-cial Dialogue and Partnership (Departament Dialogu i Partnerstwa Społecznego), in the recent years the most frequent cause of disputes between workers and em-ployers were remunerations (the disputes relating exclusively to wages accounted

10 H. Lewandowski, Ustawa o rozwiązywaniu sporów zbiorowych. Komentarz [Act on resolution of collective disputes. Commentary], [in:] Z. Salwa (ed.), Prawo pracy [Labour Law], vol. 3, Warsaw 1998, p. 151–152.

11 See: K.W. Baran, Zbiorowe prawo pracy. Komentarz [Collective labour law. Commentary], Warsaw 2015, p. 369.

12 K.W. Baran, Zbiorowe prawo pracy. Komentarz [Collective labour law. Commentary], War-saw–Cracow 2007, p. 373.

13 K. Rączka, Kilka uwag w sprawie legalności sporu zbiorowego [A few comments on the legality of a collective labour dispute], PiZS 1996, No. 2, p. 57.

14 Ibidem, p. 58.

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for 58.82% of all disputes). The second largest group of disputes were wages and other causes of conflicts, and the third group were wages and working conditions. A leading demand in the wages collective dispute was increase of a monthly base remuneration which would cover all employees of the establishment in which the collective dispute was ongoing. Another most commonly mentioned trade un-ion demand was to change a method of calculation of an incentive bonus fund (fundusz premii motywacyjnej), to increase the amount of employee rewards as well as to amend the remuneration rules applicable in the employing establish-ment. As regards the working conditions, trade unions demanded compliance with OHS regulations and pointed out to employer’s failure to provide occupa-tional clothing, supportive meals and drinks and compliance with work rules applicable in the undertaking. The causes of collective disputes regarding social benefits related mainly to the company social benefits fund (zakładowy fundusz świadczeń socjalnych) and employer’s failure to make payments to the company social benefits fund. As regards a cause of disputes regarding respect of union freedoms, the most important cause was the mode of cooperation between trade unions and respecting the trade union rights by the employer15.

1.2. Working conditionsUnfortunately the term „working conditions” was not defined in the Act on

resolution of collective disputes and the definition of this concept in the Labour Code is also quite ambiguous. In a narrow sense, it refers only to circumstances in which work is performed, and in a broad sense, accepted by the majority of jurisprudence, it refers to all the factors determining either directly or indirect-ly the terms and conditions of employment16. According to A. Świątkowski17, the concept of „working conditions” is used to describe a situation in the work-place, therefore it includes all the circumstances which affect the legal situation of a worker. The author differentiates between the „working conditions” and the „terms and conditions of a contract of employment” and includes among the former the factors which are both dependent and independent of workers such

15 Rozwiązywanie sporów zbiorowych [Resolution of collective disputes]. Informator 2014, Min-istry of Labour and Social Policy. Department of Social Dialogue and Partnership, Warsaw 2015, www.dialog-gov.pl.

16 J. Boruta, Z. Góral, Z. Hajn, Komentarz do ustawy o związkach zawodowych, organizac-jach pracodawców, zbiorowych sporach pracy [Commentary to the Act on trade unions, employers’ organisations and collective labour disputes], Łódź 1992, p. 102; J. Żołyński, Komentarz do ustawy o rozwiązywaniu sporów zbiorowych [Commentary to the act on resolution of collective disputes], Warsaw 2012, passim.

17 A.M. Świątkowski, [in:] J. Wratny, K. Walczak (eds), Zbiorowe prawo pracy. Komentarz [Col-lective labour law. Commentary], Warsaw 2009, p. 276–278.


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as: work environment, organisation of work, equipment available in the work-place, social infrastructure in the workplace. Nevertheless, a concept which de-serves approval is that the terms and conditions of a contract of employment can be included in the category of working conditions in a broad sense which may be a subject-matter of a collective dispute and further a subject-matter of strike demands18. Within the meaning of Art. 1 of the collective disputes act, „working conditions” include also „terms and conditions of a contract of employment” re-ferred to in Art. 29 § 1 KP. Depending on the context of the provision (the sub-ject-matter) it can mean OHS conditions (Art. 15 and 94 (4) KP), conditions to which the terms of an employment relationship are subject (Art. 240 § 1 (1) KP), essential terms and conditions of a contract of employment (Art. 42§ 1 KP), or equal treatment in employment (Art. 183a § 1 and Art. 183b § 1 KP). The majority of representatives of labour law jurisprudence accept the broad meaning of the concept „working conditions” referred to in Art. 1 of the collective disputes act. Therefore, the term „working conditions” covers the conditions of performance of work and the terms and conditions of a contract of employment, including the type of a contract of employment19. In a broad sense, a collective dispute may relate not only to organisational, protection, disciplinary or technical issues but also to normative issues20. Nevertheless, as regards interpretation of this concept, direct transposition of the determinations made under other provisions and con-cepts should not be accepted. Even if the opinions concerning the broad under-standing of the concept of „working conditions” are commonly accepted among the legal academics and commentators, still there are discrepancies as regards un-derstanding of the working conditions as a subject-matter of a collective dispute. Some authors emphasize that ownerhsip transformations cannot be a subject-matter of a collective dispute21 – for example demands regarding management of an enterprise, replacement of a manager or transformation of ownership22 – un-less they directly affect the terms and conditions of employment23. A conflict re-

18 M. Kurzynoga, Warunki legalności strajku [Conditions for legality of workers’ strike], Warsaw 2011, p. 149–150.

19 B. Cudowski, [in:] J. Stelina (ed.), Zakładowy dialog społeczny [Workplace social dialogue], 2014, p. 262 ff.

20 K.W. Baran, Zbiorowe prawo pracy. Komentarz [Collective labour law. Commentary] Warsaw 2016, p. 366.

21 J. Żołyński, Pracodawca a związki zawodowe. Wybrane problemy zbiorowego prawa pracy [Employer vs. trade unions. Selected problems of collective labour law], Warsaw 2010, p. 393.

22 J. Żołyński, Ustawa… [Act on…], p. 24–26; idem, Strajk i inne rodzaje akcji protestacyjnych jako metody rozwiązywania sporów zbiorowych [Strike and other industrial actions as the methods for resolution of collective disputes], Warsaw 2013, p. 29–38.

23 K.W. Baran, Zbiorowe prawo pracy. Komentarz [Collective labour law. Commentary], Warsaw 2016, p. 366.

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garding management of an enterprise is not a collective dispute unless the man-agement would apparently cause repercussions as regards matters falling under Art. 1 of the collective disputes act, such as for example in a situation where the subject of the demand is replacement in a managerial position of a person whose acts pose a direct threat to rights and interests of workers24. Usually, the subject-matter of a collective dispute is improvement of working conditions of workers. In practice, its purpose is to extend the scope of workers’ benefits25. Likewise, in a collective dispute workers may seek to maintain their rights which the employ-er intends to limit.

1.3. Wage conditions A collective dispute may concern also wage conditions26. A major interpre-

tation problem is caused by the fact that Art. 1 of the collective disputes act uses a term „wage” (płaca) (wage conditions) and not a term „remuneration” (wyna-grodzenie) for work. Therefore, it is necessary to determine whether these con-cepts are similar or different. Benefits such as severance payments (odprawy), compensations (odszkodowania) or compensation benefits (świadczenia kompen-sacyjne) are not remuneration. As regards other benefits, such as rewards or idle time pay, they are controversial issue27. According to Art. 29 KP a contract of employment specifies, among others, the wage conditions, and in particu-lar remuneration for work. As regards the so-called notice to amend the terms and conditions of employment (notice to amend wage or working conditions) (wypowiedzenie zmieniające) (Art. 42 KP), the legislature mentioned wage con-ditions. Provisions of the Labour Code differentiate between the conditions of remuneration for work and other benefits (Art. 77¹ KP, Art. 77² KP, Art. 77³ KP). Therefore, the concept of remuneration for work cannot be considered equiva-lent to the concept of wages referred to in Art. 1 of the collective disputes act28. The term „wages” (płace) is derived from economic sciences and may also be understood differently. The term „wages” (płace) used in Art. 1 of the collective disputes act should be interpreted broadly as financial benefits received in con-nection with the performed work. Therefore, this concept could include both re-muneration for work and other work-related benefits. It is unacceptable to keep

24 H. Lewandowski, Spory zbiorowe pracy... [Collective labour disputes…], p. 135–136, this opin-ion is contested by B. Cudowski, Spór zbiorowy [Collective dispute], p. 264.

25 Z. Hajn, Zbiorowe prawo pracy. Zarys systemu [Collective labour law. An outline of the system], Warsaw 2013, p. 182 ff.

26 K.W. Baran, Zbiorowe… [Collective…], p. 258.27 B. Cudowski, Spór zbiorowy [A collective dispute], p. 264.28 Ibidem.


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outside the subject-matter of a collective dispute the work-related benefits which are not classified as components of remuneration for work29. According to H. Le-wandowski, the term „wages” used in Art. 1 of the collective disputes act has the same meaning as the expression „remuneration for work”. As pointed out by the author, the term „wages” is characteristic of economic sciences but it is used also in labour law and labour law studies. For example, Art. 29 § 1 of the Labour Code (KP) mentions specification in the contract of a remuneration for work, and Art. 42 KP governs a notice to amend the „wage conditions” (wypowiedzenie warunków płacy). In Chapter III of the Labour Code, which in the opinion of the mentioned author is of significant importance for the concept interpretation, there are no diverse terms but only the term – „remuneration for work” – which is a legal term inherent to labour law. Therefore, according to H. Lewandowski, the terms remuneration for work and wages are equivalent.

As regards business operators, the scope of a collective agreement may include any and all issues relating to remuneration. On the other hand, in the organisa-tional units of the public sector the most frequent cause of collective disputes is the internal distribution of funds allocated for example for wage increases30. In the public sector wages are governed by laws which cannot be amended by em-ployers31. This is because those employers usually do not have any non-budget instruments available to increase the remunerations32. In the public sector collec-tive disputes regarding wage increases are not prohibited, however, the success of such dispute may be problematic.

1.4. Social benefits The labour legislation in force does not provide for a clear definition of the

term „social benefits” (świadczenia socjalne). A source of serious difficulties re-garding the understanding of that term may be the Labour Code itself which in Art. 94 (8) provides for the employer’s obligation to satisfy (within its means) the social needs of employees. The above expression may be considered equivalent

29 A ruling of the Social Arbitration Panel (Kolegium Arbitrażu Społecznego) (KAS) at the Polish Supreme Court of 18.4.1994, KAS I/94.

30 K.W. Baran, Zbiorowe prawo pracy. Komentarz [Collective Labour Law. Commentary], Warsaw 2010, p. 393–394.

31 B. Wagner, [in:] B. Wagner (ed.), Kodeks pracy. Komentarz [Labour Code. Commentary], Gdańsk 2009, p. 421 ff.

32 A.M. Świątkowski, [in:] J. Wratny, K. Walczak (eds), Zbiorowe prawo pracy. Komentarz [Collec-tive labour law. Commentary], Warsaw 2009, p. 279–280. According to the author, collective disputes regarding wage increases in the public sector may be conducted with the central operator of state funds. The above view is not shared by B. Cudowski, Spór zbiorowy [A collective dispute], p. 265, because of the fact that in such case a party to such dispute would not be an employer.

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to „social benefits”. However, the wording of Art. 16 KP implies that apart from the social needs of workers, there are also living needs and cultural needs. The lit-eral interpretation of the latter provision might lead to an erroneous conclusion that social benefits do not include living and cultural needs. The material scope of the ”social benefits” is explained by the Act of 4.3.1994 on the company social benefits fund (ustawa o zakładowym funduszu świadczeń socjalnych)33. It pro-vides for social activities for the benefit of workers and their families and financ-ing of company social facilities. However, by reference to Art. 2 (1) of the said act, it may be concluded that „social benefits” mean benefits in kind or monetary benefits designated for such purposes as: workers’ rest, cultural and educational activity, financial aid for workers (such as welfare, loans, allowances, subsidies) or housing for workers34. The activities, forms of assistance and facilities provided for by the act do not form a closed catalogue of social benefits but undoubtedly reflect the essence of that concept. Different forms of social benefits can be based on that act, on collective agreements as well as on workplace practices or industry practices. The essence of the term „social benefits” is that they are not remunera-tion for work since they are obtained with no equivalent and this is what distin-guishes them from other work-related benefits35.

Two groups of activities may be distinguished within the so-called social ac-tivity36. The first one includes activities designed to satisfy the social needs of workers and undertaken primarily in the interest of workers. The second group includes actions designed to satisfy the social needs of workers which, however, are undertaken primarily in the interest of the employer and are related to the employer’s production or service activity. As regards non-wage benefits, partic-ularly important are the benefits which protect workers in the event of illness or accident at work, such as: periodic health surveillance, additional health in-surance, sick pay, insurance covering the risk of long-term incapacity for work, life insurance, services in a private clinic, provision of material or financial sup-port for treatment and rehabilitation37. The social benefits include also: financ-ing purchases on various occasions, provision of credit cards up to the specified

33 Journal of Laws [Dz.U.] of 1996, No. 70, item 335, further called the Act on the company social benefits fund.

34 K.W. Baran, Zbiorowe prawo pracy. Komentarz [Collective Labour Law. Commentary] Warsaw 2016, p. 367.

35 See: A. Sobczyk, Konstytucyjne podstawy zakładowej działalności socjalnej [Constitutional basis for the social activity in an undertaking], [in:] J. Stelina, A. Wypych-Żywicka (eds), Człowiek, obywatel, pracownik [A human, a citizen, an employee], Studia z zakresu prawa, vol. XVII, Gdańsk 2007, p. 224.

36 J. Skoczyński, Komentarz do ustawy o zakładowym funduszu świadczeń socjalnych [Com-mentary to the Act on the company social benefits fund], Warsaw 1999, p. 18.

37 M. Kurzynoga, Warunki… [Conditions…], p. 157–158.


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limits, additional paid vacation, allowances and support for persons facing dif-ficult personal, family and financial situation and victims of accidents, financ-ing of upskilling trainings, special events, gifts and meals on various industry and professional events such as Miners’ Day, Children’s Day or Women’s Day, etc38.

The obligations of the employer in respect of creation of the fund, write-offs, designation and management of funds are of general nature which means that employees are not entitled to raise individual claims in this regard. Therefore, the above issues can be a subject-matter of a dispute between employees and an em-ployer. The underlying cause of a collective social dispute may be in particular the matters relating to: creation of the fund, contributions to the social benefits fund and respective allocation of resources39, unlawful spending of the fund’s re-sources or setting out the rules for spending the resources of the company social benefits fund or company housing fund. However, this is not the case in relation to every benefit referred to in the Act on the company social benefits fund. As re-gards a holiday benefit (świadczenie urlopowe) referred to in Art. 3 (4) of the Act on the company social benefits fund, it is an employment benefit, however, it is neither a component of a remuneration for work nor a social benefit40. Since the laws lay down the conditions for entitlement to the holiday benefit, an employee has an individual claim for payment of such benefit. Therefore, the obligation to pay the benefit is a part of the employment relationship and the disputes aris-ing from it are subject to the jurisdiction of labour courts. Under Art. 4 (1) of the collective disputes act, the claims for payment of the holiday benefit cannot be a subject-matter of a collective dispute41 and therefore cannot be a subject-matter of a strike.

A collective dispute regarding employer’s failure to fulfil the obligation to properly administer the fund’s resources and timely contributions to the fund was a dispute regarding collective rights of workers. However, in such case a trade union is also entitled to bring a claim before a labour court for return to the fund of the sums spent contrary to the provisions of the act or for respective contri-butions to the fund (Art. 8 (3) of the Act on the company social benefits fund). The accuracy of the choice left to a trade union (court proceedings or a collective

38 Ibidem. 39 See A. Sobczyk, Nowelizacja ustawy o zakładowym funduszu świadczeń socjalnych – wybrane

problemy [Amendment of the Act on the company social benefits fund – selected problems], PiZS 1996, No. 8–9, p. 87; G. Uścińska, Zakładowy fundusz świadczeń socjalnych [Company social benefits fund], Bydgoszcz 1995, passim.

40 W. Sanetra, Zakładowy fundusz świadczeń socjalnych po nowemu [A company social benefits fund – new regulations], PiZS 1997, No. 2, p. 16.

41 B. Cudowski, Spory… [Collective…], p. 47 ff.

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dispute) is confirmed by the majority of representatives of jurisprudence42 and by the case-law of the Polish Supreme Court43.

1.5. Trade union rights and freedoms According to Art. 1 of the collective disputes act, a subject-matter of a collec-

tive dispute may be, among others, trade union rights and freedoms of workers or other groups who enjoy the freedom of association in trade unions. The legis-lature clearly distinguishes between the trade union rights and trade union free-doms, however, this distinction is not very clear and unambiguous44. In the lit-erature and case-law45 the trade union freedoms are defined as certain freedoms and privileges of workers and trade unions developed in the international law. These include elements of worker and trade union status and not competences granted by the state46. Consequently, the provisions of the Act on trade unions (ustawa o związkach zawodowych) which classify the trade union freedoms in the category of trade union rights should be considered a confirmation of the exist-ing abilities to take certain actions. The term trade union rights should be un-derstood to mean rights of trade unions. Their primary source are trade union freedoms47. Also the Polish Supreme Court ruled on the trade union rights and freedoms and pointed out48 that a difference between freedom and right in the sphere of interpretation and application of law is, among others, that the actions undertaken within the allowed trade union freedom do not have to be based on positive law in terms of the contents, method of exercise or form or exercise while a right, in legal terms, must each time be based on a specific legal title. It should be mentioned that regardless of the understanding of the trade union rights and freedoms, all the fundamental trade union freedoms are now guaranteed in the Act on trade unions49.

42 An opposite opinion is expressed by A.M. Świątkowski, [in:] J. Wratny, K. Walczak (eds) Zbi-orowe prawo pracy [Collective Labour Law], Warsaw 2009, p. 284 ff. According to the author, in the event of employer’s failure to fulfil the obligation to properly administer the fund’s resources and to make timely contributions to the fund, a collective dispute is not permitted.

43 A decision of the Social Arbitration Panel (KAS) at the Polish Supreme Court, KAS 2/96, OSP 1997, No. 6, item 124.

44 K.W. Baran, Wolności… [Trade union…], p. 14 ff. 45 See a judgment of the Polish Supreme Court (SN) of 5.6.1996, I PRN 37/96, OSP 1997, No. 3,

item 51. 46 M. Kurzynoga, Warunki… [Conditions…], p. 160.47 K.W. Baran, Zbiorowe… [Collective… ], p. 105.48 A judgment of the Supreme Court of 15.10.1992, I PZP 35/92, OSNC 1993, No. 1–2, item 3. 49 B. Cudowski, Spór zbiorowy… [A collectice dispute…], p. 267.


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According to Art. 59 (4) of the Constitution of the Republic of Poland „the scope of the freedom of association in trade unions and in employers’ organiza-tions and the scope of other trade union freedoms may only be subject to such statutory limitations as are permissible in accordance with international agree-ments to which the Republic of Poland is a party”. The term „other trade union freedoms” refers to the freedoms mentioned in Art. 59 (2) and (3) of the Consti-tution of the Republic of Poland. Therefore, the constitutional term „trade union freedoms” includes the freedom (right) to unite in trade unions and employers’ organisations, the right to collective bargaining and to conclude collective agree-ments (and other arrangements) and the right to collective disputes and strikes (or other forms of protest)50.

In Art. 1 of the collective disputes act the legislature mentions the trade un-ion freedoms alongside trade union rights, thereby it refers primarily to the ter-minology used in the international legal acts, such as ILO Convention no. 87 of 1948 concerning Freedom of Association and Protection of the Right to Or-ganise51 and ILO Convention no. 98 concerning the Application of the Princi-ples of the Right to Organise and to Bargain Collectively adopted in Geneva on 1.7.194952, and not to the Act on trade unions. This is because the Act on trade unions, even if issued on the same date as the collective disputes act, does not use the term „trade union freedoms”. The Convention no. 87 provides for four prin-ciples (guarantees) of the trade union freedom: the right to establish and to join organisations, the right to draw up their constitutions and rules, to elect their rep-resentatives in full freedom, to organise their administration and activities and to formulate their programmes, the prohibition to dissolve or suspend the organisa-tions by administrative authority, the right to establish and join federations and to affiliate with international organisations53.

In some legal writings the trade union freedoms are classified as rights and they are considered fundamental rights to distinguish them from other trade un-ion rights54. The trade union freedoms are qualities of workers and their trade unions, developed in the international law and accepted in the civilised world55. These are inherent features of worker and trade union status and not compe-tences granted by the state. The fundamental trade union freedoms include the

50 L. Florek, Pojęcie i zakres działalności związkowej [The concept and the scope of trade union activity], [in:] A. Wypych-Żywicka, M. Tomaszewska, J. Stelina (eds), Zbiorowe prawo pracy w XXI wieku [Collective labour law in the 21st century], Gdańsk 2010, p. 69 ff.

51 Journal of Laws [Dz.U.] of 1958, No. 29, item 125.52 Journal of Laws [Dz.U.] of 1958, No. 29, item 126.53 Z. Hajn, Status… [Legal…], p. 10 ff. 54 See for example: B. Cudowski, Pojęcie… [A concept…], p. 39–40.55 H. Lewandowski, Ustawa o rozwiązywaniu sporów zbiorowych [The Act on resolution of collec-

tive disputes], [in:] Z. Salwa (ed), Prawo pracy [Labor law], t. III. Warsaw 1998, p. 151–152.

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freedom of association which involves the possibility to form trade unions (free-dom in a collective sense) and the possibility to join trade unions (freedom in an individual sense), independence from the employer and public administration and self governance56.

The collective disputes regarding trade union rights and trade union free-doms may be caused by various reasons. It is widely acknowledged in legal writ-ings that under Art. 1 of the collective disputes act a collective dispute may be initiated in the case of introduction by the employer of discriminatory practices in relation to trade unions or in the case of harassment of members or activists of such trade unions57. Also, any encroachment of consultative and advisory com-petences of trade unions, an attempted interference with the statutory activity of a trade union, any actions designed to break or subordinate a trade union to the employer58, refusal to provide appropriate facilities and technical equipment, re-fusal to provide the necessary information, may be grounds for a collective labour dispute. On the other hand, a collective dispute in connection with a demand to grant a leave from duties (zwolnienie z obowiązku świadczenia pracy) to an em-ployee for the duration of his term of office in the management board of a trade union organisation is unacceptable. The Polish Supreme Court, analysing the demand in terms of an individual or collective labour dispute, underlined that it is a right granted to an employee elected a member of a workplace trade union organisation in the circumstances laid down in Art. 31 (1) of the Act on trade unions, provided that he is indicated by the management board as a person who should take such leave59. A strike is illegal also in case of non-compliance with trade unions’ right to initiate enactment of legal acts and to give opinions on the draft legal acts in matters of interest to employees (Art. 19 of the Act on trade unions). Such disputes are not considered collective disputes within the meaning of the collective disputes act because the right to participate in the law-making process has a specific purpose and does not apply directly to the terms and con-ditions of employment connected with the work in an establishment concerned60. Therefore, not every infringement of a trade union right or freedom authorises initiation of a collective dispute. One of the examples may be a failure to obtain

56 J. Jończyk, Prawo pracy [Labour law], Warsaw 1995, p. 170; W. Sanetra, Wolności związkowe w świetle nowej ustawy o związkach zawodowych [Trade union freedoms in the context of the new act on trade unions], PS 1991, No. 5–6, p. 3 and following.

57 K.W. Baran, Zbiorowe prawo pracy. Komentarz [Collective Labour Law. Commentary], p. 368. 58 K.W. Baran, Likwidowanie sporów pracy. Zagadnienia praktyczne [Resolution of labour dis-

putes. Practical issues], Warsaw 2003, p. 134 ff. 59 A judgment of the Polish Supreme Court (SN) of 5.6.1996, I PRN 37/96, OSP 1997, No. 3, item

51 with a commentary of T. Kuczyński, OSP 1997, No. 3, item 51.60 B. Cudowski, Spory zbiorowe... [Collective disputes...], p. 50 ff.


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opinion from a trade union regarding price increase of urban transport tickets61. Disregard of such opinion does not provide grounds for initiation of a collec-tive dispute62.

The overall conclusion is that the concept of trade union freedom covers not only the employees’ right to form and join trade unions but also other rights in-herent to the former, that is in particular a right of an organisation to freely draw up its constitution and internal rules, to decide on its structure and governing bodies and the right to act freely, and in particular the right to bargain collective-ly and to conduct collective actions63. Claims relating to violation of the rights of trade union activists may be pursued before a labour court but in the event of persistent violation of such rights a dispute may be classified as a dispute relat-ing to trade union rights or freedoms and therefore falling within the statutory subject-matter of a collective dispute64. The possibility to organise a strike in the event of termination of an employment relationship with a trade union activist involved in a dispute, as an exception laid down in Art. 17 (2) of the collective disputes act, is also questionable65. Some argue that it is not an exception because in this case the good protected by a strike is primarily the right to a strike itself and not an individual right of the trade union activist66.

§ 2. Parties to a collective labour dispute


2.1. Trade unions as representatives of workers The parties to a collective dispute may be workers or other groups who have

the right to organise in trade unions and employer or employers (Art. 1 of the collective disputes act). However, workers may be represented only by trade un-ions (Art. 2 of the collective disputes act) and employers may be represented by competent employers’ organisations (Art. 2 (2)). The monopoly of trade unions

61 A judgment of the Polish Supreme Administrative Court (NSA) of 19.12.1991, SA/Kr 1512/91, Wok. 1992, No. 5, p. 21.

62 A decision of the Polish Supreme Court (SN) of 2.12.1986, KASN 9/86, OSPiKA 1987, No. 11–12, item 209 with a commentary of W. Masewicz.

63 M. Kurzynoga, Warunki… [Conditions…], p. 165.64 B. Cudowski, Spór zbiorowy… [A collective dispute…], p. 268. 65 J. Piątkowski, Uprawnienia… [Rights…], p. 289 ff. 66 Z. Hajn, Zbiorowe... [Collective...], p. 182 ff.

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as regards the representation of workers is the most significant and most contro-versial issue. In the establishments where no trade unions operate, workers do not have the possibility to conduct a collective dispute. A substantive condition which must be met to be a party to a collective dispute on the workers’ side is that the workers should have the right of trade union coalition. Therefore, a collec-tive dispute may be initiated and conducted exclusively by a trade union (regard-less of the number of its members) which meets the conditions to be considered a workplace trade union organisation. A consequence of the obligation to be rep-resented by a trade union is that under the laws in force workers cannot estab-lish any special representative (non-trade union) bodies to conduct a dispute67. However, such deprivation of the workers employed at the establishment where no trade unions operate of the opportunity to protect their rights and interests in collective disputes is contrary to the principle of negative trade union freedom68. Commencement of a dispute by a non-trade union entity is illegal. Such collec-tivity is not a legal entity and is not an independent party to legal transactions but it may instigate a workplace trade union organisation to start protests and initiate disputes69. Although Art. 3 (4) of the collective disputes act provides that a collective dispute may be conducted at the establishment where no trade un-ions operate by a trade union from outside that establishment, as practice shows, it is of little significance70. It should also be kept in mind that a collective dispute initiated or conducted by a trade union organisation which lost its entitlement to act in the capacity of a workplace trade union organisation, is illegal. In such case conducting a strike, in any form, will also be illegal, and the organisers of such action will be legally liable for any consequences of their actions. Trade unions’ right to represent workers in collective disputes is guaranteed by Art. 59 (2) and (3) of the Constitution of the Republic of Poland. However, it does not imply that the right to represent workers in collective disputes cannot be granted to other entity71. In the scholarly works on the subject it is generally acknowledged that

67 J. Żołyński, Spór zbiorowy a brak zakładowej organizacji związkowej [A collective dispute in the absence of a workplace trade union organisation], PiZS 2013, No. 7, p. 28.

68 M. Seweryński, Założenia nowej regulacji prawnej zbiorowych sporów pracy w Polsce [New regulations on the collective labour disputes in Poland], [in:] B. von Maydel, T. Zieliński (eds), Ład społeczny w Polsce i w Niemczech na tle jednoczącej się Europy. Księga pamiątkowa poświęcona Czesławowi Jackowiakowi [Social governance in Poland and in Germany and the uniting Europe. A me-morial book dedicated to Czesław Jackowiak], Warsaw 1999, p. 136.

69 J. Żołyński, Spór zbiorowy… [A collective dispute…], p. 28.70 M. Kurzynoga, Warunki… [Conditions…], p. 102–103.71 M. Seweryński, Problemy statusu prawnego związku zawodowego [Legal status of a trade

union], ([in:] G. Goździewicz (ed.), Zbiorowe prawo pracy w społecznej gospodarce rynkowej [Col-lective labour law in the social market economy], Toruń 2000, p. 120 ff.,


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the Polish regulations do not in fact prevent a non-trade union workers’ repre-sentation from conducting a collective dispute72.

A major problem regarding a trade union as a representative of workers is that there is no requirement of representativeness of a trade union involved in a col-lective dispute73, and this is a consequence of a wording of Art. 3 of the collective disputes act which mentions a trade union organisation74. The absence of the re-quirement of representativeness is criticised by the labour law jurisprudence75. A statutory requirement for representation of workers in a collective dispute is only that a trade union should operate at the employing establishment. It should be emphasized that the provisions of the act do not use the term „workplace trade union organization” (zakładowa organizacja związkowa). This means that be-cause of the applicable principle of plurality of trade unions, there may be sever-al or more workplace trade union organisations at one establishment. According to Art. 3 (1) of the collective disputes act each of them may represent in a collec-tive dispute the interests which are the subject-matter of such dispute. A collec-tive dispute may be initiated also by an inter-company trade union organisation – it is sufficient where at least one member of the trade union is employed by the employer concerned. An employer cannot refuse to conduct a dispute with any trade union organisation. Therefore, it may happen that an employer will be forced to conduct more than one dispute, even regarding one and the same matter, if the trade union organisations submit identical claims to the employer. Even if Art. 3 (2) of the collective disputes act provides that a joint trade union representation can be established, however, it is possible only when the trade un-ion organisations operating at the establishment so decide. An employer cannot obligate trade union organisations to establish a joint representation, even if the demands raised by each of the trade unions are the same. A consequence of the

72 Z. Hajn, Związkowa reprezentacja praw i interesów pracowniczych a zasada negatywnej wolności związkowej [Representation of workers’ rights and interests by trade unions and the principle of negative trade union freedom], [in:] G. Goździewicz (ed.), Reprezentacja praw i interesów pracown-iczych [Representation of workers’ rights and interests], Toruń 2001, p. 74.

73 See: B. Cudowski, Przedmiot i strony zakładowego sporu zbiorowego pracy [The subject-matter of and the parties to a collective dispute], [in:] Z. Hajn (ed.), Związkowe przedstawicielstwo pracowników zakładu pracy [Representation of workers by trade unions], Warsaw 2012, p. 357 ff.

74 An opposite view was presented by A.M. Świątkowski, Zbiorowe… [Collective…], p. 307. The author argues that the provisions of Art. 3 of the collective disputes act use the concept of the „workplace trade union organisation”.

75 B. Cudowski, Reprezentacja praw i interesów pracowniczych [Representation of workers’ rights and interests in collective disputes], [in:] G. Goździewicz (ed.), Reprezentacja praw i interesów… [Rep-resentation of rights and interests...], op. cit., p. 318–322; M. Latos-Miłkowska, Reprezentatywność w zbiorowych i indywidualnych stosunkach pracy [Representativeness in collective and individual labour relations], [in:] L. Florek (ed.), Indywidualne a zbiorowe prawo pracy [Individual and collective labour law], Warsaw 2007, p. 142.

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above regulations is that an employer must conduct a dispute, on an equal foot-ing, with each workplace trade union organisation, both the one uniting a mini-mum number of members (10 persons) which will represent several hundred or several thousand workers and with an organisation which in fact unites sev-eral thousand members76. If the trade union organisations operating at the es-tablishment do not form a joint representation for the collective dispute, it may significantly hamper or even prevent settlement of particular collective disputes. Undoubtedly, a serious defect of such mechanisms is that a dispute may be con-ducted by a small trade union, without asking the staff for an opinion77. Trade union organisations which form a joint representation determine the scope of the authorisation granted to such representation and its composition. The joint representation may be established for one dispute only but it may also be a per-manent joint representation. The Act on resolution of collective disputes (collec-tive disputes act) does not resolve who is entitled to conduct them in the name of a trade union. It must therefore be concluded that it should be each case a statu-tory body, therefore the provisions of the statutes (constitution) of a trade union should resolve that question. Usually these are management boards of workplace trade union organisation.

In analysing the problem of representation of workers in collective disputes, account should be taken of the provisions of EU law78. The primary EU law guarantees the right to organise, to bargain collectively and to take collective ac-tions. The general rule is that the right to organise, the right to strike and the right to lockout is outside the EU’s competences. However, it should be kept in mind that these issues were regulated in the Community Charter of the Funda-mental Social Rights of Workers and the European Social Charter. The right to collective bargaining and to collective action was granted in the EU laws to work-ers or their organisations. One of the examples is Art. 6 (4) of the European So-cial Charter which recognizes the rights of workers to collective action without regulating their representation79. Also, ILO Convention no. 154 concerning the Promotion of Collective Bargaining and the supplementary Recommendation no. 163 provide for the possibility to bargain collectively by representatives of work-ers who are not trade union representatives.

76 J. Żołyński, Ustawa o rozwiązywaniu… [The act on resolution...], p. 36.77 B. Cudowski, Spór zbiorowy… [A collective dispute…], p. 270.78 Ibidem, p. 269. 79 A.M. Świątkowski, M. Wujczyk, Polskie regulacje z zakresu rozwiązywania sporów zbiorowych

w świetle standardów europejskich na przykładzie prawa do strajku [Polish regulations on the resolu-tion of collective disputes in the context of international standards illustrated by the right to strike], [in:] A. Wypych-Żywicka, M. Tomaszewska, J. Stelina (eds), Zbiorowe prawo pracy w XXI wieku [Collective labour law in the 21st century], Gdańsk 2010, p. 255 ff.


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2.2. Employers’ organisations The other party to a collective dispute may only be an employer or employ-

ers whose rights and interests may be represented by competent employers’ or-ganisations80. An employer is an entity referred to in Art. 3 of the Labour Code (Art. 5 of the collective disputes act) which means that a party to a collective dis-pute may only be an employer (employers) according to a managerial concept81. According to a definition in the Labour Code an employer is an organisational unit, also this without a legal personality, as well as a natural person if they em-ploy employees. Therefore, in the case of legal persons an employer is the person or organisational units which are component parts of a legal person (internal es-tablishments), separated in technical, organisational and financial terms in such a manner that they can exercise the rights and competences and fulfil the obliga-tions of the employer82. Therefore, an employer is an organisational unit entitled to independently employ workers, and to enter into and terminate employment relationships with workers83. Also, an internal unit which – under provisions gov-erning the organisation of a legal person, in particular internal provisions (such as statute) – was appointed as a managing body of a legal person authorised to make declarations of will in the name of the latter as the employer will be consid-ered an employer within the meaning of Art. 3 of the Labour Code84. However, an organisational unit in which a manager hires and dismisses employees only on the basis of an authorisation granted by the management of a legal person in which the unit is incorporated will not be considered an employer. According to the Polish Supreme Court this category of employers includes, among oth-ers: government offices, a municipal office, a district court, a public school, an establishment of a state-owned enterprise, organisational units of a limited li-

80 Z. Hajn, Zbiorowe... [Collective...], p. 183. 81 The managerial concept of the employer is criticised in the jurisprudence because of the

fact that in the case of internal units of legal persons it leads to separation of a „nominal employer” from the „real employer” who, in the case in question, is the legal person. This is not favourable to an employee because in such case an addressee of a strike is a dependent structure, deprived of its own personal interests, which cannot be an authentic partner in the collective (and individual) labour and employment relations. It is rightly pointed out that the managerial model leads to the creation of a group of apparent employers and to falsification of employment relationships, enabling legal eva-sion of law and escaping the obligatons by the actual employers. A reasoning to a decision of a Social Arbitration Panel (Kolegium Arbitrażu Społecznego) at the Polish Supreme Court (SN) of 17.10.1996, KAS 2/96, OSNAPiUS 1997, No. 10, item 180.

82 M. Kurzynoga, Warunki… [Conditions…], p. 116.83 Resolution of the Polish Supreme Court of 16.11.1977, I PZP 47/77, OSPiKA 1979, No. 7–8,

item 25.84 Z. Hajn, Pojęcie pracodawcy po nowelizacji Kodeksu pracy. Cz. I. [A concept of an employer

after the amendment of the Labour Code. Part I], PiZS 1997, No. 5, p. 21.

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ability company, separated organisational units of a political party85. Accord-ing to M. Kurzynoga86, because of the fact that a legal strike may be addressed to an employer of the employees on strike (or to employers’ organisation of which the employer is a member), a condition for the legality of the strike in the case in question is that all the postulates are addressed to the units which are component parts of a legal person which have the ability to hire workers. According to law such units (and not the legal person which takes material decisions concerning the internal units and which benefits from the results of work of the employed workers) are considered the employer.

There is also another view presented in the legal writings according to which a party to a collective dispute may be public authorities and administration bod-ies87, however, this view is not generally approved88. The current wording of Art. 5 of the collective disputes act is in opposition to the Act on trade unions of 1982 previously in force (governing strikes) under which a party in a conflict was a public and economic administration body, according to an assumption that state is the only employer. According to the managerial concept applicable in the Polish law, the employers in the central and local government public sector are state and local public sector units without legal personality which are supporting units of state and local authorities. Under the laws currently in force, the central and local government administration bodies do not have powers to be the ad-dressee of demands raised by the persons on strike. As highlighted in the litera-ture, such regulation89 may distort the labour and employment relations in the public sector because it hides the real employer, which is a state and the local gov-ernment legal persons, behind the apparent employers. This is because the Polish legislation recognizes that the employers are individual public agencies, central and local government offices and other budgetary units without legal personal-ity who are formal and apparent employers90. This was pointed out also by the Polish Constitutional Tribunal91 which held that the provisions of the collective disputes act resulted in certain restrictions imposed on the employees of the pub-

85 Quoted from: ibidem, p. 21 and the case-law referenced there. 86 M. Kurzynoga, Warunki… [Conditions…] p. 117–118.87 A.M. Świątkowski, Zbiorowe prawo pracy [Collective Labour Law], p. 292.88 B. Cudowski, Spór zbiorowy [A collective dispute], p. 271; E. Gienieczko, Ustawa o rozwiązywaniu

sporów zbiorowych [Act on resolution of collective disputes], Sł. Prac. 2009, No. 2, p. 3. 89 Z. Hajn, Pracodawca i organizacja pracodawców jako podmioty zbiorowego prawa pracy

(wybrane problemy) [An employer and employers’ organisation as the parties governed by collective labour law (selected problems)], [in:] G. Goździewicz (ed.), Zbiorowe prawo pracy w społecznej gosp-odarce rynkowej [Collective labour law in the social market economy], p. 48.

90 M. Kurzynoga, Warunki… [Conditions…] p. 123.91 Judgment of the Polish Constitutional Tribunal [TK] of 24.2.1992, K 19/96, OTK 1998, No. 1,

item 6.


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lic sector (trade unions representing them) as regards the possibility to negoti-ate the demands and postulates which are the subject-matter of a collective dis-pute. It is also worth noting that the reason of conflicts is that the society expects welfare-state-like response in the area of social rights, state intervention in eco-nomic matters and support for the multi-sector economy with state ownership and this justifies the thesis that the competence to be a party in a dispute should remain with administration bodies92. The collective disputes in such sectors as mining, railway transport, education or healthcare services are a clear example of a situation where the only partner for trade unions should be the government which at the same time, according to Polish law, cannot be a party to a collec-tive dispute93. The situation is completely different under the international law where a strike against central or local government authorities is legal. Therefore, the fact that the Act on resolution of collective disputes (ustawa o rozwiązywaniu sporów zbiorowych) does not recognize the public authorities as the parties to collective disputes with public service employees may be considered violation of Art. 7 and 8 of Convention no. 151, as well as Art. 6 (2) and 3 of the European Social Charter since it constitutes a barrier in the efficient functioning of the pro-cedures for resolution of collective labour disputes94.

An employer in a collective dispute may act either alone or appoint a repre-sentative from outside such organisation. If the employer so decides, he should specify the limits of authorisation of the organisation or a representative to rep-resent him in a dispute, for example whether the organisation or the representa-tive may conclude on behalf of the employer an agreement ending the collective dispute whether this requires separate consent of the employer95.

The problem with identification of the employer in a collective dispute ex-ists also in the disputes concerning collective agreements a party to which are employees of more than one work establishment and there is only one entity on the employer’s side96. The Supreme Court has on many occasions confirmed in its case-law that a collective agreement may be concluded by an entity who is not an employer within the meaning of Art. 3 of the Labour Code. A company which

92 B. Wypychło, Idea zachowania pokoju społecznego w zbiorowych stosunkach pracy [The idea of preservation of social peace in the collective labour and employment relations], [in:] A.M. Świątkowski (ed.), Studia z zakresu prawa pracy i polityki społecznej [Labour law and social policy studies], Cracow 1994, p. 349.

93 M. Kurzynoga, Warunki… [Conditions…] p. 125.94 For more on the topic see: M. Kurzynoga, Warunki… [Conditions…], p 122–127.95 A. Marek, Spory zbiorowe, cz. I. Obowiązujące etapy i procedury [Collective disputes, part I.

Stages and procedures], Sł. Prac. 2009, No. 2, p. 4. 96 See: M. Raczkowski, Pracodawca wielopodmiotowy – holding? [A multi-entity employer – hold-

ing?], [in:] M. Gersdorf, M. Raczkowski, R. Wysiński (eds), Zatrudnieni i zatrudniający na aktualnym rynku pracy [Employees and employers on the present labour market], Warsaw 2012, p. 93 ff.

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comprises more than one employer within the meaning of Art. 3 KP has the ca-pacity to conclude a collective agreement97. According to the Supreme Court, in such case it is possible to accept in the collective labour law an ownership model98 of the employer which is accepted also in legal writings 99. An issue which is deci-sive for determination whether a collective dispute is a company-level dispute or a sectoral dispute is whether the dispute relates to collective rights or interests of workers of one employer or of greater number of employers (sectoral dispute100). In the case of disputes concerning collective agreements or other collective ar-rangements concluded by the entities which cover several employers, the dispute would be indirect dispute. It is also possible to transform several workplace dis-putes in one multi-employer dispute if such transformation is based on the will of the parties to such disputes, the subject-matter of a dispute relates to workers employed by more than one employer and the rights and interests of all workers and employers covered by the dispute are represented by authorised entities101.

As rightly pointed out by B. Cudowski102, a correct mechanism as regards the employer’s side of a collective dispute is laid down in Art. 141 of a draft collective labour code103. According to this provision a party to a collective dispute might be not only an employer or employers but also other entities which can be a party to a collective agreement. This confirms the accuracy of the previous case-law of the Supreme Court concerning other collective agreements. It remains disputable whether an employer may be represented in a collective dispute by an employers’ organisation of which he is not a member. According to Art. 2 (2) of the collec-tive disputes act, the rights and interests of employers in the collective disputes are represented by „competent” employers’ organisations. Identical provisions are laid down in Art. 143 of a draft collective labour code. It seems that an employer who has the right of coalition may be represented in a dispute by employers’ or-ganisation who agreed to that. According to an opposite view, a „competent” or-ganisation is only the organisation to which the employer belongs104.

97 A judgment of the Polish Supreme Court of 9.8.2006, III PK 42/06, OSP 2008, No. 7–8, item 81 with a commentary of B. Cudowski.

98 A judgment of the Polish Supreme Court of 12.8.2004, III PK 38/04, OSNP 2005, No. 4, item 55; a resolution of 7 judges of 23.5.2006, III PZP 2/06, OSNP 2007, No. 3–4, item 38.

99 Z. Hajn, Pojęcie… [A concept…], p. 33; M. Gersdorf, Jeszcze w sprawie sporu o pojęcie praco-dawcy [Comments in a dispute on the concept of an employer], PiZS 1997, No. 2, p. 32.

100 See an order of the Polish Supreme Court of 10.2.1984, III PO 1/84, OSNC 1984, No. 11, item 207 with commentaries of A.M. Świątkowski, Palestra 1985, No. 9, p. 94.

101 See a decision of the Social Arbitration Panel of 26.1.2006, III KAS 1/05, OSNP 2007, No. 3–4, item 59.

102 B. Cudowski, Przedmiot… [The subject-matter…], p. 345 ff. 103 The draft collective labour code of April 2008 was posted on the website of the Ministry of

Family, Labour and Social Policy at https://www.mpips.gov.pl/prawo-pracy/projekty-kodeksow-pracy/ 104 Z. Hajn, Status… [Legal…], p. 86 ff.


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§ 3. Initiation of a collective dispute


A collective labour dispute may be initiated exclusively by a trade union105. The Act on resolution of collective disputes provides for no exceptions to this rule. Because of the fact that a collective dispute may be initiated only by the workers’ side, an employer becomes in fact a passive party which can only defend itself against demands raised by a trade union106. According to Art. 7 (1) in connec-tion with Art. 1 of the collective disputes act, a collective dispute exists from the date when a trade union organisation submits to the employer specific demands concerning working conditions, wages or social benefits and trade union rights and freedoms of workers or other groups who enjoy the freedom of association in trade unions, if the employer does not accept all the demands within a time-limit specified in the submission, not shorter than 3 days. The entity declaring a dispute may give a warning that if the demands raised are not accepted, a strike will be de-clared. A strike cannot be commenced within 14 days of the date of a notification of the dispute (Art. 7 (2) of the collective disputes act). The time-limit of 14 days must be adhered to also when the obligatory procedures of irenic resolution of dis-putes – negotiations and mediation – were previously exhausted. It is worth not-ing that a date of a strike scheduled by a trade union is not a date of termination of pre-strike procedures: bargaining, mediation and possibly arbitration. Notification of a dispute is significant for further assessment of legality of the strike because of the principle of identity of claims covered by the dispute107. The Polish legisla-ture clearly pointed out that a condition for legality of a strike is the expiry of at least 14 days following notification of a dispute, however, according to documents of ILO’s Committee of Experts and ILO’s Committee on Freedom of Association the period of notice may be 40 days in the case of the so-called „essential service” or 20 days in the case of „other essential services of social or public interest”108.

105 A. Marek, Spory… [Collective…], p. 1–7.106 J. Żołyński, Pracodawca… [Employer…], p. 393; idem, Charakter norm zbiorowego prawa

pracy na przykładzie ustawy o rozwiązywaniu sporów zbiorowych [The nature of provisions of collective labour law in the context of the Act on resolution of collective labour disputes], [in:] A.M. Świątkowski (ed.), Studia z zakresu prawa pracy i polityki społecznej [Labour law and social policy studies], Cracow 2015, p. 635 ff.

107 Z. Hajn, Zbiorowe… [Collective…], p. 185.108 B. Paździor, Strajk w orzecznictwie organów kontrolnych Międzynarodowej Organizacji Pracy

[Strike in the case-law of control authorities of the International Labour Organization], PiP 2002, No. 1, p. 50.

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For notification (and therefore initiation) of a dispute by a trade union to be effective, specific demands must be formulated concerning matters109 which fall within the subject-matter of a collective dispute and a time-limit must be set for the employer to accept such demands. The notice of a dispute should specify the demands covered by the dispute. What raises doubts is the start date of a collec-tive dispute. According to Art. 7 (1) of the collective disputes act, if the employer did not accept the demands within a prescribed time-limit, the dispute shall start on the date when the demands were raised. It is emphasized in the literature that it would be more reasonable if a dispute arose only after workers’ demands are rejected if the workers consider such rejection unjust and decide to initiate a dis-pute110. If the employer accepts the demands of a trade union, they are no long-er contentious. Determination of the moment when a collective dispute arises is extremely important because it starts the statutory procedure for resolution of a collective dispute. The negotiations between a trade union and an employer fol-lowing the submission of demands, should not be considered a start of a dispute because they can end with conclusion of an agreement and drawing up a report. Improper indication of a collective dispute can be seen in particular where the negotiations preceding rejection of workers’ demands last very long. This results in artificial prolongation of a collective dispute111.

The legislature did not specify the form of notification of a dispute but mere-ly indicated a requirement to specify the demand and set a time-limit for em-ployer’s decision. In the absence of the requirement regarding the form of the notification it should be assumed, on the basis of lege non distinguente argument, that it may be any form112 (oral or written), however, it must be expressed suf-ficiently clear113. However, for teleological reasons, and in particular the need for documentation of the collective activities, it seems that it should be a written form. If a dispute is notified to the employer in writing, there will be no prob-lem with compliance with the requirements regarding the form, and moreover, if such notice is served personally (preferably requesting confirmation of the date of notification of the dispute), or alternatively by a postal operator, all for-mal requirements will be met. The written form gives the organisers of a strike

109 G. Goździewicz, Z. Myszka, J. Piątkowski, Uprawnienia związków zawodowych w stosunkach pracy [Rights of trade unions in labour relations], Toruń 2005, p. 185.

110 M. Kurzynoga, Warunki… [Conditions…] p. 180; J. Żołyński, Pracodawca… [Employer…], p. 393.

111 M. Seweryński, Wybrane zagadnienia rozwiazywania sporów zbiorach w Polsce [Resolution of collective labour disputes in Poland – selected problems], [in:] G. Goździewicz (ed.), Arbitraż i mediacja w prawie pracy. Doświadczenia amerykańskie i polskie [Arbitration and mediation in the labour law. Polish and American experiences], Lublin 2005, p. 49-50.

112 K.W. Baran, Zbiorowe… [Collective…], p. 409.113 M. Kurzynoga, Warunki… [Conditions…], p. 181.


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the confidence that the condition laid down in Art. 7 of the collective disputes act was met and in case of any doubt it is the strongest evidence of legality of the strike. However, there are also no obstacles to oral notification of a dispute. A notification made in such form is not invalid, however, it causes certain dif-ficulties regarding the standard of proof. If the notification is not in writing, it may result in serious consequences to the organiser of a strike. In particular, the employer may argue that a dispute was not notified which means that the strike is illegal.

Because of the common use of documents in electronic form, a generally rec-ognized form of provision of information are means of indirect communication which enable recording and transmission of statements without the need to use third party services. This may lead to questions whether a dispute may be noti-fied via fax or e-mail114 which are the most typical methods of distance commu-nication. If such forms were considered illegal, this could seem not convincing because of wide-ranging technological development, the effects of which can be seen in various areas of law. Also, given that statements/declarations made in an electronic form with advanced electronic signature are considered equal to writ-ten form, the possibility to notify of a dispute in such manner is worth consider-ing115. According to civil law jurisprudence, control printouts of statements sent by fax or e-mail prima facie116 evidence. As regards the arguments supporting the possibility of notification of a dispute via means of distance communication, it is also important that the legislature recognized the existence and the need to use the electronic form. Article 19 (2¹) of the Act on trade unions117 provides that the objectives of legal acts and draft legal acts, within the limits of tasks of trade un-ions, should be sent by central and local government authorities also to a relevant e-mail address indicated by a competent statutory body of a trade union, not later than on the date of service of such documents in writing. According to Art. 19¹ (3) of the Act on trade unions, the EU consultation documents and EU draft le-gal acts, within the limits of tasks of trade unions, should be sent by government administration authorities to a relevant e-mail address indicated by a competent statutory body of a trade union.

It should be noted that the collective disputes act does not impose on the employer an obligation to respond to the demands of a trade union and there-

114 K.W. Baran, Zbiorowe… [Collective…], p. 409. 115 M. Kurzynoga, Warunki… [Conditions…] p. 182.116 As cited in: M. Kurzynoga, see: J. Janowski, Podpis elektroniczny w obrocie prawnym [Elec-

tronic signature in legal transactions], Warsaw 2007, passim; D. Szóstek, Podpis elektroniczny – prob-lemy cywilnoprawne [Electronic signature – civil law aspects], PPH 2002, No. 1, p. 47; S. Rudnicki, S. Dmowski, Kodeks cywilny. Komentarz [Civil Code. Commentary], Warsaw 2010, p. 219.

117 Act of 23.5.1991 on trade unions (Journal of Laws [Dz.U.] of 2001, No. 79, item 854).

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fore the employer is not obliged to send any letter to a trade union presenting his standpoint. If, however, the employer intends to respond, this can be done in any form – orally, by phone, by fax. Therefore, the conclusions regarding the form of response of the employer will be similar to these mentioned above. In the legal writings on the subject it is pointed out that passive behaviour of an employer fol-lowing expiration of the time-limit indicated by a trade union cannot be treated as acceptance of the demands of the trade union; on the contrary, the passivity of the employer should be treated as rejection of the demands in whole118. The leg-islature set only the minimum period of waiting for employer’s response which is 3 days. The time-limit should be counted in accordance with Art. 111 § 1 of the Civil Code (KC) which provides that a time-limit specified in days shall ex-pire at the end of the last day. The date of receipt of the demand is not taken into account (Art. 111 § 2 KC) which means that if a time-limit expires on a public holiday (public holidays are only Sundays and other public holidays, therefore the so-called Saturday off is not a public holiday), then the following day should be included (Art. 115 KC). What may also be of relevance for the employer is a com-plicated organisational structure (the so-called multi-establishment employer – pracodawca wielozakładowy) where the meetings of the governing bodies, such as a management board, are held once a week or the management board is incom-plete at a given time. Therefore, a trade union which is aware of the situation of the employer and which actually strives to resolve the existing problem may set a period longer than the statutory period for the employee to respond to trade unions. Obviously it is not a statutory requirement but only a sign of good will of trade unions in the cooperation with the employer. A trade union may disregard the factual situation of the employer and act in accordance with statutory provi-sions and set a minimum statutory period for the response.

According to a social peace clause stipulated in Art. 4 (2) of the collective dis-putes act, if a collective dispute concerns the content of a collective agreement or other arrangement to which a trade union organisation is a party, the dispute concerning an amendment of the agreement or the arrangement may be initiated and conducted not earlier than upon termination of such agreement or arrange-ment. In practice it means that a dispute commenced earlier is illegal. However, it seems that commencement of a dispute during the period of notice is accept-able. The mentioned provision which is a lex specialis restricting a constitutional freedom of protest cannot be interpreted broadly. According to the provisions of Art. 2417 § 3 of the Labour Code (KP), a notice of termination of a collec-tive agreement shall be 3 months. However, there are no normative obstacles preventing the parties from reducing or extending the period of notice under

118 J. Żołyński, Pracodawca… [An employer…], p. 394.


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a special agreement. Similar mechanisms apply also to other categories of collec-tive arrangements concluded in industrial relations. A question arises whether a collective dispute is admissible in the case of partial termination of a collective agreement or arrangement. The opinions presented in the legal writings on the subject are divided. Some of the authors argue that a collective agreement cannot be terminated in part119. On the other hand, K.W. Baran120 gives a partially af-firmative answer. According to the author a collective dispute may relate to mat-ters governed by the provisions which are subject to the notice of termination. As to the remaining part, not covered by the notice of termination, a collective dispute is de lege lata inadmissible. Therefore, if a collective agreement may be terminated in full, then in the absence of a clear reservation in the Labour Code, it can be terminated also in part or even its particular provisions may be subject to termination121. It follows from a maiori ad minus argument.

§ 4. Classification of methods of resolution of labour collective disputes

K.W. Baran

Referring to the methods of resolution of collective labour disputes, first I would like to clarify the concept of methods of resolution of collective disputes. It means conscious and consistent conduct aimed at resolution or reduction of the existing conflicts between the parties to a dispute regarding workers’ rights or interests.

From a theoretical point of view, there are two methods of resolution of col-lective labour disputes122: irenic and non-irenic. An irenic method means any conduct aimed at amicable resolution of a collective dispute, without using co-ercion, in particular economic or organisational coercion. On the other hand, the non-irenic methods are based on economic, organisational or psychologi-cal coercion exerted upon the social partner to accept the demands raised in a dispute.

119 See: K. Rączka, [in:] M. Gersdorf, K. Rączka, M. Raczkowski, Kodeks pracy. Komentarz [Labour Code. Commentary], Warsaw 2010, p. 958.

120 K.W. Baran, Zbiorowe… [Collective… ], p. 367.121 J. Żołyński, Ustawa o rozwiązywaniu... [Act on resolution...], p. 48–49.122 The adjective „irenic” originates from a Greek word „eirene” which means „peace”.

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In the labour relations of the states of industrial civilization123 the most com-mon are the following irenic methods:– conciliation (negotiations/bargaining),– mediation,– dispute adjudication,– arbitration,– fact finding124,– administrative proceedings.

Each of those methods125 gives the parties involved in a dispute an opportu-nity to resolve such dispute amicably, through an agreement, settlement or ruling.

The most common non-irenic methods of resolution of collective labour dis-putes are:– strike,– lockout,– industrial actions (for example a boycott, hot cargo, obstructionism, work-to-

rule, blockade of a work establishment, blockade of goods, picketing, displaying posters, displaying flags for protest, occupation of public buildings, blockade of public roads and border crossing points, railroads and seaways).It is worth noting that the classification of methods of resolution of collec-

tive disputes presented above is a model only. In practice, situations may occur where in the context of certain normative mechanism doubts will arise as to the classification of a specific institution within a specific method. This is because some of those institutions are heterogeneous, for example they include both me-diation and dispute adjudication. It should also be kept in mind that at one stage of a dispute two or more methods may be applied at different levels (for example strike and conciliation).

123 The methods of resolution of labour disputes in the states of industrial civilization were de-scribed in detail in Conciliation and Arbitration Procedures in Labour Disputes. A Comparative Study. International Labour Office, Geneva 1980 and a Polish edition of that book B. Skulimowska (ed.), Procedury pojednawstwa i rozjemstwa w zatargach zbiorowych, Warsaw 1982, p. 20 ff.

124 On this subject see: A. Świątkowski, Rozwiązywanie sporów zbiorowych [Resolution of collec-tive disputes], Studia z zakresu prawa pracy i polityki społecznej 1994, No. 1, p. 302–303.

125 As regards ILO recommendations, the irenic procedures are laid down in recommendation no. 92, Voluntary Conciliation and Arbitration Recommendation. On this subject see in particular: L. Florek, M. Seweryński, Międzynarodowe prawo pracy [International labour law], Warsaw 1988, p. 178–179.

§ 4. Classification of methods of resolution of labour collective disputes

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§ 5. Irenic methods of resolution of collective labour disputes

K.W. Baran

§ 5.1. ConciliationConciliation126 as an irenic method of resolution of collective labour disputes

consists in resolution of a conflict in the course of direct negotiations between the parties to a dispute. In the industrial relations the conciliation usually has two basic forms – direct negotiations without a participation of third parties (con-ciliation in a strict sense); or – direct negotiations with a participation of a third party called a conciliator (conciliation in a broad sense).

If there is a conciliator in the negotiations, he is not independent of the par-ties and therefore he has no normative competences to resolve the dispute. Basi-cally, his tasks are limited to conducting the negotiations and creating a climate conducive to the negotiations. In model terms, the main role of the conciliator is to encourage the parties to discuss the differences between them and reach an agreement. However, – unlike the mediator – the conciliator cannot interfere sub-stantially with the course of the negotiations.

Under the Polish law, notification of a collective dispute results in employer’s obligation to immediately start the collective bargaining with trade unions127. According to the provisions of Art. 8 of the Act on resolution of collective dis-putes (ustawa o rozwiązywaniu sporów zbiorowych), negotiations between the parties are obligatory. A decisive argument in favour of such interpretation is pro-vided by the provisions of the act itself according to which the employer „shall undertake” and not „may undertake” the collective bargaining. The consequence of such categorical expression is that from a normative point of view, he cannot avoid the negotiations. It appears that the only exception is a situation where the

126 The origins of the term „conciliation” are explained in more detail by W. Kopaliński, Słownik wyrazów obcych i zwrotów obcojęzycznych [Dictionary of foreign terms and expressions], Warsaw 1983, p. 225. As regards labour law context, see also the deliberations of: W. Tomyn, Postępowanie… [Proceedings…], p. 24.

127 B. Skulimowska, Tryb i procedury rozwiązywania zatargów zbiorowych w Polsce na tle porównawczym [Procedures for resolution of collective labour disputes in Poland – a comparative ap-proach], Warsaw 1992, p. 31 ff.; A.M. Świątkowski, Rozwiązywanie… [Resolution…], p. 295–297; K.W. Baran, Model… [A model…], p. 15 ff.; B. Cudowski, Model rozwiązywania sporów zbiorow-ych [A model of resolution of collective disputes], [in:] G. Goździewicz (ed.), Zbiorowe prawo pracy w społecznej gospodarce rynkowej [Collective labour law in the social market economy], Toruń 2000, p. 245 ff.

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demands put forward by the entity representing workers go beyond the material scope of a collective dispute and therefore they relate to issues which are outside the competences of the employer.

This provision imposes on the employer an obligation to immediately start the collective bargaining. Each time they should start as soon as possible un-der specific circumstances, without any undue delay. A ratio legis of this regula-tion is relatively clear – its purpose is to create a mechanism preventing escala-tion of the conflict resulting from its extension over time. It is worth noting that the provisions do not specify – even indirectly – the end date of the bargaining. From praxeological point of view, the collective bargaining should continue for as long as there is still a chance to reach an agreement.

The parties to the bargaining are not obliged to act in good faith128. It is not sufficiently clear how the good faith should be manifested. It is much easier to prove the lack of „good faith” of the parties in the negotiations. The examples may be as follows: intentional protraction of the negotiations, avoiding appoint-ment of a negotiator, replacement of the negotiator in the course of the bargain-ing without due cause, provision of false information on the situation of the work establishment, failure to respond to the partner’s proposals, refusing any con-structive proposals for resolution of the dispute, harassing employees who par-ticipate in the bargaining129.

If the negotiations are conducted in the form of conciliation in a broad sense, then the parties other than parties to the collective dispute may also participate. For example, these may be independent observers or representatives of public au-thorities. However, under the laws in force, they do not enjoy independence such as for example a mediator or a social arbitration panel in the next stages of resolu-tion of a collective dispute. Also a labour inspector does not enjoy such position, despite the fact that Art. 8 of the Act on resolution of collective disputes explicitly imposes on the employer an obligation to inform the inspector that a collective dispute has been initiated.

According to Art. 9 of the Act on resolution of collective disputes, a result of direct negotiations taken up by the parties to a collective dispute may be ei-ther conclusion of an agreement or drawing up a discrepancy report (protokół rozbieżności). The parties may conclude an agreement in various situations. Therefore, it may preserve the status quo between the parties before commence-ment of a dispute when the differences between the parties appeared insignificant or apparent and the entity representing workers’ rights and interests withdrew the demands. In another possible option of resolution of a collective dispute the par-

128 In this regard see also B. Cudowski, Model... [A model…], p. 245–246.129 B. Skulimowska, Tryb... [The procedure...], p. 36–37.


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ties may change in the agreement the previous configuration of rights and obliga-tions between them. Such agreement is usually based on a compromise reached in the course of collective bargaining under which each of the parties makes cer-tain concessions in favour of the other party. They do not necessarily have to be objectively equivalent. It is also possible that as a result of the conciliation proce-dure the employer, in the agreement terminating the dispute, will accept in full all the demands raised by the employees. In such case, the agreement – in relation to the claims – is a source of labour law within the meaning of Art. 9 § 1 of the Labour Code (KP). As regards the form of the agreement, according to a literal interpretation of Art. 9 of the Act on resolution of collective disputes there is no doubt that it should be made in writing. The article provides that the bargaining should end with signing an agreement.

In the absence of positive results of the collective bargaining, the parties must draw up a discrepancy report (protokół rozbieżności). The term „draw up” used in Art. 9 of the Act on resolution of collective disputes clearly implies the writ-ten form of that act. The major function of the discrepancy report is informative. Therefore, it should specify in detail the matter in dispute, mutual arrangements, if any and a position adopted by each of the parties in the course of the negotia-tions and regarding the matters in dispute. In practice, in the Polish labour rela-tions sometimes it may happen that a party refuses to sign the discrepancy report. Such behaviour is penalised under Art. 26 of the Act on resolution of collective disputes since it hampers the conduct of a collective dispute in compliance with law. However, a refusal to draw up the discrepancy report does not preclude con-tinuance of the dispute at the stage of mediation procedure. If a party who initi-ated the dispute sustains the demands raised, such party is entitled to file an ap-plication for appointment of a mediator.

5.2. MediationMediation130, as an irenic method of resolution of collective labour dis-

putes consists in intermediation131 by a third party, aimed at resolution of a dis-pute through an agreement between the parties, without the use of coercive measures132.

130 See the term „mediare” in W. Kopaliński, Słownik… [Dictionary…], p. 475.131 Sometimes the activities which facilitate reaching an agreement are called „conciliation” in

legal provisions or jurisprudence. Therefore, I do not differentiate between the terms mediation and conciliation.

132 On this subject, see in particular: A. Świątkowski, Rozwiązanie... [Resolution...], p. 295 ff.; W. Sanetra, Prawo pracy [Labour Law], Białystok 1994, vol. 1, p. 332–333; B. Skulimowska, Tryb... [The procedure…], p. 39 ff.; K.W Baran, Model... [A model…], p. 20 ff. and 246.

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The essence of the mediation is that such third party, called a mediator, is act-ing as a liaison between the parties involved, and provides them with assistance133 in development of a resolution of the dispute acceptable to both of the parties. For that purpose, the mediator should work towards reconciliation of positions represented by the parties and develop a compromise formula for resolution of the dispute.

In the states of industrial civilisation the mediation as an irenic method of resolution of collective labour disputes is highly varied in organisational and pro-cedural terms. Therefore, it is difficult to indicate one dominant model. This is because both mandatory and optional procedures are available. Consequently, the activity of the mediators is either permanent or ad hoc. There is a differentiation also at the personal level, since a mediator may be134:– commissions with parity-based composition designated by the parties to

a dispute,– public mediation bodies,– experts appointed by public bodies.

Under Polish laws, if the agreement is not reached during the direct nego-tiations, the party who initiated the dispute and who sustains its demands must submit the dispute to the mediation procedure conducted by a person who guar-antees impartiality. According to Art. 10 of the Act on resolution of collective dis-putes, there is no doubt that the mediation procedure is obligatory. In practice it means that a party who initiated the dispute may not omit this stage135. If such party acted otherwise, for example if it declared strike, this would constitute vi-olation of an imperative directive laid down in the mentioned article and such strike would be illegal.

According to Art. 11 of the Act on resolution of collective disputes136, the par-ties are free to jointly decide who should be the mediator. However, if the parties, within a period of 5 days from (as it seems) the date of termination of the concili-ation procedure fail to reach an agreement on election of a mediator, the mediator should be designated by a Minister of Labour and Social Policy upon request of

133 In the Anglo-Saxon legal system a term used to denote the mediation activity is „facilitator”, which means activities designed to facilitate achievement of a specific objective.

134 This is discussed in detail by W. Masewicz, Prawna... [Legal…], p. 12.135 In this context, a view presented in a decision of the Social Arbitration Panel (Kolegium

Arbitrażu Społecznego) at the Supreme Court of 28.1.1997, KAS 3/96, OSNAPiUS 1997, No. 19, item 391 according to which a procedure before the social arbitration panel must be preceded not only by bargaining but also mediation, should be considered fully appropriate.

136 Article 11 (1) of the Act on resolution of collective disputes is a sign of discrimination of employers’ organisations in the collective labour relations. On this subject see: K.W. Baran, Glosa do postanowienia SN I PZP 13/96 z 12.6.1996 [A commentary to a decision of the Supreme Court I PZP 13/96 of 12.6.1996], PS 1997, No. 7–8, p. 146–147.


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one of the parties137. The mediator is remunerated at the rates specified in § 1 (1) of a Regulation of the Minister of Labour and Social Policy of 26.6.2001 on the conditions of remuneration of mediators entered on a list of the Minister of La-bour and Social Policy (rozporządzenie MPiPS z 26.6.2001 w sprawie warunków wynagradzania mediatorów z listy ustalonej przez MPiPS)138. However, a contract concluded by the mediator with the parties may provide for higher rates. In the case of documented lack of funds to cover the costs of the mediation, such costs should, upon request of the parties, be financed by the minister; however, in such case the remuneration of the mediator should be paid up to the amount specified in the abovementioned regulation.

Under Art. 111 (1) of the Act on resolution of collective disputes a mediator who is permanently employed, not only under an employment relationship, is entitled to a leave from work. A total number of days of such leave cannot exceed 30 days in a calendar year.

In the context of the deliberations on the status of a mediator in a collective labour legislation, a question arises whether a collective body may act as a me-diator, for example a conciliation commission appointed under an agreement between the parties. In my opinion, the answer to this question should be posi-tive, even if the act clearly prefers individuals. I justify this by teleological rea-sons. In my opinion, if the parties made such arrangements, there is no reason why each of them should not designate a person or persons as members of this collective body which should act as the mediator. Obviously, it has one major de-fect. The „collective” mediator (such as a conciliation commission) poses a risk of lack of objectivity because persons designated as members may feel obliged to represent the interests of a party who designated them. Therefore, from a praxe-ological point of view it seems more favourable to designate as a mediator one person who should guarantee impartiality and objectivism to the parties involved in the collective dispute.

The provisions of the Act on resolution of collective disputes do not give too many explanations concerning the role of the provider of „good (mediation) ser-vices”. As I have already mentioned, the role of the mediator should not be limit-ed to passive observation of the negotiations conducted by the parties in dispute. This is because a mediator undertakes activities aimed at reaching an agreement ending a dispute.

In practice, hearing both parties is of key importance for the efficient over-coming of differences between them. This also allows for an objective assess-ment of interests of each of the parties. Therefore, the mediator must ensure that

137 See on this subject: B. Wypchło-Grymek, Prawne… [Legal…], p. 23.138 Journal of Laws [Dz.U.] of 2001, No. 72, item 756.

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all parties to a dispute may speak freely. Violation of the audiatur et altera pars principle may result in loss of confidence in the mediator which may lead to fail-ure of the mission.

The success of the mediation procedure is dependent, to a large extent, on the behaviour of the person conducting such procedure and the objective attitude to the arguments presented by the parties. Any signs of partiality, such as particular-ly favourable attitude to one of the parties and ostentatious aversion towards the other party precludes the possibility to reach an agreement. The mediator’s abil-ity to be actively neutral is of significant importance for the positive resolution of a dispute. Sometimes the mediator needs to show flexibility in negotiations which can lead to integration of positions of the parties or at least to a compro-mise. This means a skillful use of measures aimed at overcoming the differences between the parties. The mediation techniques applied must be adequate not only to the nature of a particular collective dispute but also to the level of its intensity. Given the above, it is difficult to determine some specific and at the same time universal rules of mediation in the collective labour disputes. This is largely due to diversity of conflicts arising in the industrial relations. This involves not only regional or sectoral differences but also the differences in the economic relations and ownership relations in individual work establishments. In this context the directive according to which the mediator should respect a settled workplace tra-dition or the generally accepted customs becomes unquestionable. The mediator will need to adjust the recognized mediation techniques to a particular situation.

The flexibility of the mediation activities undertaken in the process of reso-lution of collective labour disputes is supported by a limited formalism of this stage of the proceedings. The legislation in force is very general and it defines merely a framework of such proceedings. Therefore, the mediator enjoys a rela-tively high level of discretion as regards selection of techniques to influence the parties in a dispute.

As regards the mediation techniques, they were not described precisely in the normative acts. It seems that a technique which is particularly useful in the mediation is persuasion. Its essence is that the mediator uses rational arguments to influence the positions of the parties. The role of the mediator in a collective dispute will be to make the parties in a dispute aware of their mutual interests arising from their legal and economic relations. The mediator should put a par-ticular emphasis on the facts which affect the interdependency between the work-ers’ collectivity and the employer. Attention should be drawn not only to all the negative conseqences of a dispute for each of the parties but also for all the work-ers’ collectivity.

In the course of the mediation procedure the mediator should, if such situ-ation objectively occurs, make the party (who in his opinion is not right) aware


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that its position is wrong and should encourage it, by reasonable argumenta-tion, to change its position. It is because convincing is „(...) the best method of persuasion”139. A method which can be applied to encourage the parties in dis-pute to change their uncompromising attitude is making a reference to civil re-sponsibility and loyalty to the employing establishment. However, this method will be effective only where trade unionists identify strongly with the organisa-tional unit which employs them140.

It is worth noting that also the manner in which the mediator conducts the conciliation meeting is of significant importance for the irenic resolution of a col-lective labour dispute. In many disputes this form of mediation will be necessary in view of temporal aspect. Therefore, a mediator should create during the me-diation the climate of mutual understanding. Such climate in the negotiations may be achieved not only through an objective attitude towards the parties but also a certain intuition in the undertaken mediation efforts, an ability to adjust the mediation techniques to the mental condition and individual characteristics of particular persons involved in such mediation. Therefore, the mediator should consistently, however not aggressively, encourage the parties involved in the dis-pute to submit proposals for resolution of the dispute and should seek to obtain approval for the arrangements he proposes. It is favourable – from the praxe-ological point of view – to submit, already at the beginning of the negotiations, a draft plan for resolution of the conflict. In such case the discussion will focus on the assumptions presented by a neutral entity. This allows avoiding a direct confrontation of positions regarding the matter in dispute.

In some instances, a constructive element in the process of resolution of a col-lective dispute may be preliminary inquiries conducted by the mediator. Arti-cle 13 (2) of the Act on resolution of collective disputes provides for the possibil-ity to obtain expert opinions in order to determine the economic and financial situation of the work establishment concerned. In my opinion there are no nor-mative obstacles that would prevent the mediator from asking independent ex-perts for opinions regarding other issues which are the subject-matter of a dis-pute. I think that the subject-matter of an expert opinion may be any facts and circumstances relevant for the parties, if they do not relate to secrets protected by law141. Objective and undisputable establishment of disputable facts or circum-

139 J. Zieleniewski, Organizacja zespołów ludzkich. Wstęp do teorii organizacji i kierowania [Organisation of groups of people. An introduction into the theory of organisation and management], Warsaw 1978, p. 388–389.

140 See: R. Kowalczyk, T. Sieczyński, Psychologia i socjologia pracy [Psychology and sociology of work], Warsaw 1984, p. 260–261.

141 For example a state secret or professional secret.

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stances142 may encourage the party who is not right to conclude an agreement or even withdraw its demands.

In describing the sequence of the mediation procedure it needs to be empha-sized that the parties to a dispute are responsible for determining the rules of the procedure which should be followed by the mediator in resolution of the dis-pute. The agreement of the parties should also specify the remuneration of the mediator if the latter was appointed by the parties. The mediator appointed by the parties in dispute may, upon their mutual decision, be dismissed at any time. This is not the case when the mediator was appointed by the Minister of Labour and Social Policy under Art. 11 (2) of the Act on resolution of collective disputes.

Under the applicable laws, a warning strike (strajk ostrzegawczy) during the mediation procedure is acceptable143. Under Art. 12 of the Act on resolution of collective disputes the right to organise a warning strike is granted to a trade un-ion organisation which initiated the dispute if the course of the mediation pro-cedure justifies the assumption that the mediation will not result in resolution of the dispute within 14 days of initiation of the dispute or within a time-limit „post-poned” upon request of the mediator under Art. 13 (3) of the same act.

A statutory condition for the warning strike is a „justified assumption” that the mediation procedure will not result in resolution of the dispute. In my opin-ion such general wording of the condition for legality of the warning strike means that in practice a trade union enjoys a considerable margin of discretion as re-gards organising such strike. The penalty laid down in Art. 26 of the Act on reso-lution of collective disputes is only illusory.

According to a literal interpretation of Art. 12 of the act, the warning strike may be organised during the mediation procedure only once and for a period not exceeding 2 hours. Organising several strikes during the mediation procedure, even if they did not exceed 2 hours in total, is illegal144.

On the other hand, the laws in force do not specify even implicite – the du-ration of the mediation procedure. Such regulation deserves absolute approval since it allows adjusting the course of the mediation procedure to the factual cir-cumstances in a dispute concerned.

According to Art. 14 (1) of the Act on resolution of collective disputes, a posi-tive result of the mediation procedure, similarly with the conciliation procedure, takes a form of an agreement between the parties. The said provision, implicite,

142 A very extensive fact-finding procedure is applied in the industrial relations in the Anglo-Saxon countries. On this subject see: A. Świątkowski, Rozwiązywanie... [Resolution...], p. 302.

143 The preventive nature of strike was pointed out by T. Zieliński, Prawo pracy… [Labour Law…], p. 147–148.

144 See: Z. Hajn, [in:] J. Boruta, Z. Góral, Z. Hajn, Komentarz... [Commentary...], p. 123.


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obligates the parties to draw up such agreement in writing145. Such agreement should clearly and precisely lay down the arrangements made between the par-ties and in particular it should specify the mutual rights and obligations or even calculation of monetary amounts or other benefits granted to the workers, in-cluding the methods of their distribution146.

The agreement ending a collective dispute may resolve only a part of the de-mands raised by trade unions. As regards unsatisfied demands, consecutive stag-es of the collective dispute procedure are possible, including non-irenic meth-ods, in particular a strike (Art. 15 of the Act on resolution of collective disputes). According to a literal interpretation of Art. 13 (3) of the act, a signature of the mediator on the agreement is not necessary and in no way affects the validity of such agreement. An opposite interpretation would be a manifestation of extreme formalism.

The agreement concluded before the mediator is binding upon the parties even if this is not provided for expressis verbis in the act147. Another issue is enforceability of such agreement. According to Art. 777 KPC such „collective” agreement is not an enforceable title. The list of enforceable titles included in that provision is enumerative. In practice this means that a party cannot enforce the agreement concluded before the mediator in a procedure laid down in the Code of Civil Procedure. The same applies to administrative enforcement pro-ceedings. It seems that as regards the labour and employment relations an effec-tive instrument of enforceability of collective agreements are non-irenic meth-ods, in particular a strike. Individual rights may be pursued in court proceedings because the „mediation” agreement is a source of labour law within the meaning of Art. 9 § 1 KP.

If the parties do not reach an agreement in the mediation procedure, they must prepare a written discrepancy report. Since the mediation is the last obliga-tory irenic procedure in the Polish collective labour law, in the case of its failure the trade unions are entitled to start a strike (Art. 15 of the Act on resolution of collective disputes). De lege lata, there is nothing to prevent the parties from re-ferring to the mediator at a later stage of the collective dispute.

145 See: K.W. Baran, Model... [A model…], p. 24.146 See: W Masewicz, Strajk. Studium prawno-socjologiczne [Strike. A legal and sociological study],

Warsaw 1986, p. 236; Z. Salwa, Uprawnienia… [Rights…], p. 72.147 For more details see: K.W. Baran, Model... [A model…], p. 24. See also Art. 41 (3) of the Act

on trade unions of 8.10.1962.

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5.3. Dispute adjudication Dispute adjudication is an irenic method of resolution of interest labour dis-

putes which consists in establishing, modifying or specifying the rights and ob-ligations of the parties in a ruling of an independent entity, on the basis of valu-ation of interests of the parties to the dispute148. It is worth emphasizing that the dispute adjudication method – unlike the previously mentioned irenic methods – is in its nature applicable only to resolution of collective disputes149. Taking the valuation of interests of the parties as the basis for resolution of individual labour disputes would undermine the constitutional principle of the rule of law. The dis-pute adjudication, in procedural terms, may be either voluntary or mandatory. Similar rules apply in respect of the binding force of the rulings. In many legal systems the dispute adjudication procedure ends with issuance of a non-binding ruling. However, there are also procedures in which a decision of the dispute ad-judication body is binding upon the parties150.

In organisational terms, the dispute adjudication as a method of resolution of collective labour disputes applies mainly to interest disputes. On the other hand, if an independent body resolves also rights disputes, then it is an arbitra-tion body. Such model is accepted under the Polish legislative system. Accord-ing to Art. 16 (1) of the Act on resolution of collective disputes, a party acting in the interest of workers may, without exercising the right to strike, try to re-solve the dispute by referring it to a social arbitration panel (kolegium arbitrażu społecznego). This general provision is specified in Art. 16 (2) of the act and in a regulation of the Council of Ministers151 of 16.8.1991 which provides in § 1 that multi-employer disputes shall be resolved by an arbitration panel attached to the Supreme Court and the disputes at one establishment – by arbitration panels at-tached to the regional courts in which labour and social insurance departments were established.

148 In the period of the Polish „August Agreements”, T. Zieliński, (Idea zbiorowego prawa pracy w socjalistycznym porządku prawnym [The idea the collective labour law in the socialist legal order], PiP 1980, No. 10, p. 25) expressed an opinion that the essence of the dispute adjudication is that „(...) a dispute is resolved with a compromise for both of the parties”.

149 See also: M. Święcicki, Element… [An element…], p. 599–614. See: C. Jackowiak, Zakładowe… [Workplace…], p. 90; J. Jończyk, Spory ze stosunku pracy [Employment disputes], Warsaw 1965, p. 236–263.

150 See: A. Świątkowski, Rozwiązywanie... [Resolution...], p. 306–307.151 Regulation of the Council of Ministers of 16.8.1991 on the rules of procedure before the social

arbitration panels (rozporządzenie Rady Ministrów z 16.8.1991 w sprawie trybu postępowania przed kolegiami arbitrażu społecznego) (Journal of Laws [Dz.U.] 1991, No. 73, item 324), further called the Regulation of the Council of Ministers of 16.8.1991.


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As regards the legal status of the social arbitration panels, first it should be said that they are attached to courts. However, at the normative level, the relation between a court and the social arbitration panel is not clear because expressis ver-bis there are no legal regulations in this respect. In my opinion the panels should be considered separate bodies which act ad hoc either at the regional court or at the Supreme Court. It seems that this argument may be supported by the statu-tory name of this body. It uses the term „attached to” the court and not „in” the court. This expression clearly emphasizes that the arbitration bodies have sepa-rate competences and are independent also as regards the procedure conducted by them. This is not undermined by the organisational and personnel relations between the court and the social arbitration panel. The social arbitration panels should in no way be considered special courts as they do not have the charac-teristics of judicial bodies. They are not public authorities while the courts, ei-ther of general or special competence, remain with the exclusive domain of state.The social arbitration panels as the bodies with a dominant social factor are not authorised to rule on behalf of the state. Consequently, their rulings cannot be considered judgments since Art. 174 of the Constitution of the Republic of Po-land reserved this form of decisions on the merits to the competence of courts and tribunals152.

Under the laws in force, the social arbitration panels cannot be considered legal protection bodies. According to a view153 prevailing among legal commen-tators, a legal protection means a sustained and organised activity undertaken for the protection of law. It should be emphasized that the activity of the social arbitration panels is not permanent. Each time when a labour dispute arises it is appointed anew, ad hoc, if the previous irenic methods fail. Also the members of the panel are not permanent since they are appointed by the parties in dispute, at their discretion. Also a professional judge who, ex officio, presides such panel is not permanently, under a decision of a president of the court, assigned to work with the panel.

The above findings clearly speak in favour of the opinion that the social arbi-tration panels do not meet the criteria to be considered legal protection bodies. All the more they cannot be considered judicial authorities154. This is because the latter are special legal protection authorities which use jurisdictional meth-ods in their activity155. In the view of the above, it seems fully reasonable to con-

152 See: K.W Baran, Z problematyki charakteru orzecznictwa kolegiów arbitrażu społecznego [The nature of jurisdiction of social arbitration panels], PiZS 1994, No. 2, p. 16 ff.

153 S. Włodyka, Ustrój… [System…], p. 9.154 The concept was defined by: K. Lubiński, Pojęcie… [The concept…], p. 3 ff.155 K.W. Baran, Sądowy... [A judicial...], p. 40 ff.

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clude that the main purpose of the activity of the social arbitration panels is to156 modify the normative relations between the collectivity of workers and the em-ployer or employers which consist either in redefining the mutual rights and ob-ligations in an interest dispute or in interpretation of the already applicable laws in the rights dispute.

The arbitration procedure is optional for the employees’ representation. This follows from a literal interpretation of Art. 16 (1) of the Act on resolution of collective disputes which provides that an entity who conducts a collective dis-pute in the interest of workers may attempt to resolve the dispute by submitting it for resolution to the social arbitration panel. It this context, it seems unadmissible to initiate the arbitration procedure if following the mediation and dissolution of joint trade union representation only one of the trade unions wishes to submit the dispute for resolution to the arbitration panel, contrary to the standpoint of other trade unions the representatives of which were in the joint representation. As re-gards the employer, de lege lata he cannot abstain from participation in the arbi-tration procedure without being exposed to liability under Art. 26 of the Act on resolution of collective disputes. However, in practice, the employers efficiently sabotage the arbitration procedure by not responding to the call for designation of members of the arbitration panel157.

The procedure before the social arbitration panel is initiated158 by a request of a party who conducts a dispute in the interest of employees. In this context, on the basis of a contrario argument, it seems reasonable to argue that de lege lata an employer is not entitled to initiate the arbitration procedure. Therefore, in a dis-pute before the arbitration panel, the employer is only a passive party.

According to a directive laid down in § 3 (2) of the Regulation of the Council of Ministers of 16.8.1991, a request for arbitration should specify:– the parties in dispute,– the matter in dispute,– the personal data of persons appointed as members of the arbitration panel.

The request should be accompanied by discrepancy reports drafted in the course of the conciliation and mediation procedure, as well as other documents relevant in terms of resolution of the dispute (such as economic and financial ex-pert studies prepared under Art. 13 (2) of the act).

If the request of an entity representing workers’ interests cannot be pursued due to formal defects, a president of the court will call upon a party to correct it

156 See more in: K.W. Baran, Z problematyki... [The nature…], p. 16 ff.157 See: W. Masewicz, Ustawa... [The act...], p. 39.158 On this subject see also a decision of the Social Arbitration Panel of 28.01.1997 r. – KAS 3/96,

published in OSNAPiUS 1997, No. 19, item 391.


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within 7 days. If the time-limit expires and the formal defects have not been cor-rected, the request is returned to the party by order of the president of the court. Because of the fact that the arbitration procedure is optional for trade unions, there are no normative obstacles that would prevent resubmission of the request for arbitration.

If the request meets the formal requiremenents and may be processed, the president of the court will order service of a copy of the request upon the em-ployer or employers including a demand to indicate members of the arbitration panel within 3 days.

If the parties do not indicate the members of the arbitration panel, the presi-dent of the court will call them to do that within 7 days. If the parties fail to in-dicate the members within the prescribed time-limit, the president of the court will order return of the request to the party which in practice means that the ar-bitration procedure will not take place.

According to Art. 16 (3) of the Act on resolution of collective disputes, a so-cial arbitration panel is composed of a chairman designated from among the judges by the president of the court and six members, three appointed by one party and the other three by the other party. Because of the imperative nature of this provision setting out the composition of the arbitration panel, it seems that the parties are not entitled to reduce or increase the number of members of the panel under an agreement between the parties. The parties should designate to the arbitration panel such persons who are not directly interested in the outcome of the case. Therefore, it seems appropriate to argue that the composition of the arbitration panel is close to parity. However, the composition is not strictly par-ity-based because a member of the panel is a judge who is not related to any of the parties in dispute. As regards his status in the arbitration panel, it can be said that he does not exercise jurisdictional powers since his task is to resolve and not to judge. This is due to the fact that a resolution of a labour dispute is not always equivalent to judging the dispute.

When all the members of the arbitration panel have been appointed, the pres-ident of the court, in accordance with a directive laid down in Art. 16 (4) of the Act of resolution of collective disputes and in § 6 of a regulation of the Council of Ministers of 16.8.1991, will immediately schedule the date of the meeting and will notify the parties and the appointed members of the arbitration panel of the time and place of the meeting. According to a directive of non-formalism appli-cable in the arbitration procedure, the summons and the notification should be served in a manner which is most expedient, in order to accellerate resolution of the dispute.

A meeting of the arbitration panel is set in a court building unless, for certain reason, it should be held at other place (for example at employer’s premises or at

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the work establishment). Before the meeting, the judge presiding the arbitration panel may call upon the parties to submit explanations and documents necessary for resolution of the dispute or to present them at the meeting.

A central point of the arbitration procedure is the meeting of the arbitra-tion panel. According to § 7 (2) of the Regulation of the Council of Ministers of 16.8.1991, it is open. Only if this is required for the sake of state or professional secrecy, the panel may decide that the dispute should be heard in camera.

The meeting is the stage of the arbitration procedure when information on the factual and legal basis of the collective dispute is completed. According to the provisions of the Regulation of the Council of Ministers of 16.8.1991, the meet-ing of the arbitration panel has the following stages:– presentation of positions of the parties (§ 9),– evidentiary procedure (§ 8 (2)),– closing of the meeting (§ 10 (1)),– deliberations (§ 10 (2)),– issuance of a ruling (§ 10 (2)).

It should also be noted that the arbitration meeting is formally conducted by a judge as a chairman of the meeting. The judge opens, conducts and closes the meeting, as well as gives the floor to the participants, asks questions, authorises questions and delivers the ruling and provides the reasoning for the ruling.

The presiding judge may also disallow a question if he considers it inappro-priate or redundant.

According to § 9 (2) of the Regulation of the Council of Ministers of 16.8.1991, the social arbitration panel is obliged to „induce” the parties to reach an agree-ment. Therefore, it should also play a role of a mediator in the arbitration proce-dure. It should be kept in mind that from a social and functional point of view an amicable resolution of a dispute seems more favourable than a ruling of the arbitration panel which always has an „addition” of legal coercion159.

During the meeting, the social arbitration panel is entitled, under § 8 (2) of the Regulation of 16.8.1991, to take evidence in compliance with applicable pro-visions of the Code of Civil Procedure governing evidence160. It serves clarifica-tion of all circumstances significant for the resolution of the collective dispute. Consequently, the following evidence may be admitted in the course of the arbi-tration procedure:– documentary evidence (e.g. a discrepancy report),– evidence from testimonies of witnesses,

159 See more in: K.W. Baran, Model... [A model…], p. 25.160 It is worth noting that it is the only reference in the Regulation of the Council of Ministers of

16.8.1991 to the Code of Civil Procedure.


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– evidence from expert opinions,– evidence from hearing of the parties.

Following the evidentiary procedure, the chairman of the meeting should give floor to the parties to present their assessment of the results of the entire proce-dure. Next, when the arbitration panel considers the case definitively explained and ready to be resolved the chairman will close the meeting.

Following the closing of the meeting, the panel will hold deliberations in closed session. Only the members of the arbitration panel and, if necessary, a re-porting clerk, may stay in the room where the deliberations are held. The re-porting clerk may be present only where some fragments of the minutes must be read out.

The ruling of the arbitration panel is adopted by the majority of votes. A member of the panel cannot abstain from voting. However, in a situation where during the voting such member did not agree with the majority, he may submit a dissenting opinion (votum separatum).

Votes of all members have the same weight. In particular, the provisions of the mentioned regulation do not give greater importance to the opinion of the chairman of the panel.

No separate minutes are made of the discussion and voting during the delib-erations. According to § 11 (2) of the Regulation of the Council of Ministers of 16.8.1991, the ruling should be signed by all members of the arbitration panel. In practice this means that also the outvoted members and members who voiced a dissenting opinion must sign it.

A ruling161 of the social arbitration panel should specify:– the name and the members of the arbitration panel,– the date of issuance of a ruling,– the parties in dispute,– the matter in dispute,– the ruling and the reasoning,– a statement whether the ruling is binding upon the parties,– signatures of the members of the arbitration panel.

In practice, the most essential issue relating to the rulings of the arbitration panel is the basis of the ruling and criteria for issuance of the rulings. They were not specified explicite in the laws in force. This allows a flexibility to react, de-pending on the legal character of a collective dispute submitted for resolution. A situation where the subject-matter of a dispute are applicable laws will be dif-ferent from the situation where the subject-matter of such dispute are workers’ in-

161 See more in: K.W. Baran, Z problematyki... [The nature...], p. 19 ff.; Z. Salwa, Uprawnienia… [Rights…], p. 148.

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terests not incorporated in the applicable legal provisions. In the former case, the basis for resolution will be laws the interpretation or application of which resulted in a dispute between the parties. These may include not only statutory provisions but also specific sources of labour law. Moreover, a situation may occur where the basis for resolution will be an earlier ruling of the social arbitration panel, if its application gave rise to a conflict between trade unions and an employer and resulted in a new collective dispute.

As regards the criteria for resolution of interest collective disputes, a more se-rious problem arises and this is not only because the laws in force do not set out such criteria. Also, a very limited practical experience – resulting from the op-tionality of the arbitration procedure – does not allow for exhaustive and precise classification of the decision-making criteria. For that reason, it is only possible to specify framework criteria for deciding on such collective disputes.

A starting point is an observation that a factor limiting the freedom of juris-diction of the social arbitration panel is the principle of legality. An arbitration ruling must not infringe imperative laws. This directive applies not only to labour law but also to other branches of law (such as tax law or customs law). The ar-bitration bodies act within the framework of constitutional legal order and are therefore obligated – as any other parties to legal transactions – to respect the applicable normative rules.

In my opinion, rulings of the arbitration panel in the collective interests dis-putes are based on the mechanisms of valuation in accordance with the directives of fairness, justice, purpose and rationality in their broad sense. More specifically, the arbitration panel resolving a dispute should first of all take into account the situation of the parties involved in the dispute. This applies in particular to their economic situation. This results from the fact that in the Polish labour relations the prevailing disputes are those relating to wages. Therefore, the economic con-text of a dispute will often need to be taken into account in a ruling. This refers in particular to an employer, and particularly to his financial balance, level and structure of employment, level of wages and social benefits. As regards workers, it seems that the factors of significant importance may be a purchasing power of wages and the amount of wage in relation to a minimum or average remunera-tion. What cannot be disregarded is the relation between the scope of the compa-ny social benefits and the level of satisfaction of basic needs of workers and their families. Therefore, only under such conditions the arbitration panel may evalu-ate which of the demands raised by the employees deserve approval in its ruling.

An unquestionable criterion which should also be taken into account by the arbitration panel in resolving a dispute is public interest. It is particularly impor-tant to take this aspect into account in multi-employer disputes where the per-sons covered by a ruling are large groups of employees and employers. In such


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case the consequences of a ruling should be analysed also at a macro scale which means the regional or country level. This is because they may affect the econom-ic and financial situation in various sectors, and directly even the funtioning of the entire economy. In my opinion a guardian of the public interest in the arbi-tration panel should be the judge since he is the only one among the members of the panel who is not interested in the outcome of the proceedings162. It is difficult to demand objectivism and care for the public good since they were delegated by the parties in dispute.

Another issue worth discussing is the binding force of the arbitration rulings. According to Art. 16 (6) of the Act on resolution of collective disputes, a ruling of the arbitration panel is binding upon the parties to a dispute, if none of them decided otherwise before submission of such dispute for resolution by the ar-bitration panel. If such statement is made by one of the parties only, the ruling is not binding also upon the other party even if such other party has not made such statement. A question arises what is the nature of the ruling of an arbitra-tion panel in terms of the binding force. Before commencement of the arbitration procedure there is an element of „conditionality”. However, after the procedure has commenced, it is already known whether the ruling will be binding upon the parties or it will only have an opinion giving character.

Another serious question concerning the arbitration rulings is whether they can be challenged. A starting point should be an observation that neither the Act on resolution of collective disputes nor the Regulation of the Council of Minis-ters of 16.8.1991 regulate it expressis verbis. Such situation causes certain practi-cal difficulties. To mitigate such difficulties the Polish Supreme Court expressed its opinion twice, in the eighties163, that there is no appeal against rulings of the social arbitration panels since there are no superior instances in the arbitration procedure164. De lege lata the above opinion is still valid165. The parties may not modify the procedure before the arbitration panels since the respective proce-dural provisions are imperative. Also teleological reasons provide an argument against control of the arbitration rulings by a superior instance, in particular in collective interest disputes where the basis of a ruling is valuation of such interests.

162 As regards the role of a judge, see a reasoning of a resolution of the Supreme Court of 10.12.1986, III PZP 72/86, OSNCP 1987, No. 4, item 12.

163 See a resolution of 7 judges of the Supreme Court of 23.5.1986, III PZP 9/86, OSPiKA 1987, No. 4, item 77 and a resolution of the Labour and Social Insurance Chamber of the Supreme Court of 10.12.1986, III PZP 72/86, OSNCP 1987, No. 4, item 47.

164 See also: A. Świątkowski, Spory zbiorowe I [Collective disputes I], PiZS 1987, No. 8, p. 11–13 and W. Masewicz, Strajk... [Strike...], p. 244–245.

165 K.W Baran, Z problematyki... [The nature…], p. 22–23. See also: J. Piątkowski, Uprawnienia… [Rights…], p. 133.

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In analysing the issue of arbitration rulings, worth considering is their en-forceability. The majority of them, by their nature, cannot be effectively enforced under the provisions of the Code of Civil Procedure. They are usually „collec-tive”. Also the formal reasons preclude enforcement of a ruling of the arbitration panel. The point is that they are not expressis verbis listed in Art. 777 KPC. It is not possible to classify such rulings into the group specified in point 3 of that ar-ticle as „other rulings” since there is no provision in the Act on resolution of col-lective disputes which would allow enforcement in accordance with the Code of Civil Procedure. The question is whether it should be concluded that the legisla-tion in force provides for any legal mechanisms allowing implementation of an arbitration ruling. In my opinion such enforcement mechanisms exist, however, they are adjusted to the nature of collective disputes. These include in particu-lar the non-irenic methods characteristic of the labour law, namely a strike or an industrial action.

In conclusion, it is worth noting that each of the parties bears its own costs related to its participation in the case, including the costs of remuneration of members of the arbitration panel appointed by the party. On the other hand, costs of secretarial services are borne by the court at which the arbitration panel was appointed.

§ 6. Strike

M. Wujczyk

6.1. A concept of strikeA strike is defined in the Act on resolution of collective disputes (ustawa

o rozwiązywaniu sporów zbiorowych). According to Art. 17(1) of that act, a strike means a collective refraining from work by the workers, aimed at resolution of an interest dispute concerning working conditions, wages or social benefits and trade union rights and freedoms of workers or other groups who enjoy the free-dom of association in trade unions. Therefore, it is possible to indicate the el-ements which determine that certain actions of employees can be considered a strike. First, a strike occurs if employees refrain from work166. It means that em-ployees do not stand in readiness to start working. Therefore, a situation where

166 Z. Hajn, Strajk w orzecznictwie Sądu Najwyższego [Strike in the case-law of the Supreme Court], [in:] Z. Niedbała (ed.), Księga pamiątkowa w piątą rocznicę śmierci prof. Andrzeja Kijowsk-

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employees demand that they should be allowed to work is not a strike because it means that they are ready to perform duties assigned to them167. The refrain-ing from work can last for a short period of time during which duties are not performed. Therefore, an intentional non-performance of work, even for a few minutes, can be classified as a strike168. There is no consensus as to whether the refraining from work means complete cessation of performance of duties169 or only a partial refraining from performance of duties170. Under Art. 17 of the Act on resolution of collective disputes it should be considered that refraining from work can mean also refraining from some of the duties (for example a refusal to perform activities of certain type). Apart from the literal interpretation, such view is justified also by reasons of protection of employer’s interests – when such actions are classified as strike the employer may demand compensation from or-ganisers of the strike for damage sustained as a result of possible illegal actions of the persons on strike171.

In this context a question arises whether a collective action which consists in very slow performance of duties (the so-called work-to-rule) should be consid-ered a strike. I take the view that such industrial actions cannot be considered a strike. If the employees perform their duties and only such performance is in-correct and contrary to the state-of-the-art, this cannot be considered refraining from performance of duties172.

Another condition for classification of certain action as a strike is collec-tive refraining from work. I think that it is not possible to indicate a specific limit which, when exceeded, determines the collective nature of a certain ac-

iego [A memorial book on the fifth anniversary of death of professor Andrzej Kijowski], Warsaw 2010, p. 59–60; W. Masewicz, Strajk… [Strike], p. 246–249.

167 A judgment of the Supreme Court of 7.9.2005, II PK 390/04, OSNP 2006, No. 13, item 209; B. Cudowski, Spory… [Collective…], p. 126; B. Cudowski, Pozastrajkowe środki prowadzenia sporów zbiorowych [Non-strike methods of conduct of a collective dispute], MoPr 2009, No. 4, p. 173; A. Świątkowski, Strajk – synteza zjawiska [Strike – a synthesis], MoPr 2011, No. 2, p. 68.

168 Such position is taken by the International Labour Organization: General Survey of the Report of Associations and the Right to Organize Convention (No. 97), 1948 and the Right to Organize and Collective Bargaining Convention (No. 98), 1949. Report of the Committee of Experts on the Ap-plication of Convention and Recommendation, ILO Office Geneva 1994, § 173.

169 P. Korus, Strajk nielegalny [Illegal strike], Studia z zakresu prawa pracy i polityki społecznej 1997–1998, p. 160; K.W. Baran, Zbiorowe prawo pracy. Komentarz [Collective Labour Law. Com-mentary], Warsaw 2007, p. 409.

170 J. Piątkowski, Uprawnienia… [Rights…], p. 293–294.171 See more in M. Kurzynoga, Warunki… [Conditions…], p. 55–64.172 J. Żołyński, Strajk… [Strike…], p. 346. A more cautious approach was presented by M. Kurzy-

noga according to which the forms of the work-to-rule consisting in such slowdown of work may be classified as strike within the meaning of the Act on resolution of collective disputes if they take a form of actions which are so slow that they are closer to refraining from work than to performing work. M. Kurzynoga, Warunki… [Conditions…], p. 55–64.

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tion. I agree with an opinion presented in the case-law according to which the requirement of a „collective” refraining from work is the opposite of individual behaviour of particular workers173. Therefore, even a protest of two workers can be considered a strike.

Third, a strike occurs where it is aimed at certain change in the relations be-tween the employer and the employees174. Such objective does not necessarily have to lead to change of circumstances in which a collective dispute is permitted. Determination whether a strike is conducted in matters laid down in Art. 1 of the Act on resolution of collective disputes affects only the determination of legality of such a strike. If we accept that a strike must be aimed at a change of relations between employees and an employer, then the so-called political strikes cannot be considered strike actions since their purpose is to change a specific state policy and not employer’s conduct175.

It should also be considered whether cessation of work which is not voluntary should determine that a certain action is not a strike. Such principle of voluntary participation in a strike was laid down in Art. 18 of the Act on resolution of col-lective disputes. This principle is interpreted broadly. According to it an employee cannot be forced to participate in a strike. This is even called freedom from any form of organised pressure aimed at forcing an employee to join the strike or to refuse participation in a strike176. This applies not only to the stage of initiation or joining the ongoing strike but also to participation in a strike and undertak-ing certain protest activities. Therefore, an employee cannot be forced to certain behaviour (such as picketing) or to take actions leading to aggravation of the on-going strike; moreover, no pressure can be exerted on an employee which would violate the voluntary character of a certain conduct. And finally, the principle of voluntary participation grants to the employees already on strike the right to abandon the strike.

In this context it should be concluded that in the majority of cases a non-vio-lation of the principle of voluntary participation is not the basis for determining that an action concerned is not a strike. It will only affect the legality of activi-ties undertaken within the strike. Because in this case the non-voluntary char-

173 A judgment of the Supreme Court (SN) of 27.11.1997, I PKN 3939/97, OSNAPiUS 1998, No. 5, item 17.

174 T. Zieliński, Prawo pracy… [Labour Law…], p. 136–140.175 An opposite view was presented by K.W. Baran, Zbiorowe prawo pracy. Komentarz [Collective

Labour Law. Commentary], Warsaw 2010, p. 410.176 K.W. Baran, Zbiorowe prawo pracy. Komentarz [Collective Labour Law. Commentary], Warsaw

2007, p. 414; T. Liszcz, Prawo pracy [Labour Law], Warsaw 2016, p. 510; A. Świątkowski, Kompetencje związków zawodowych w sporach zbiorowych pracy [Competences of trade unions in collective labour disputes], [in:] Kompetencje związków zawodowych [Competences of trade unions] Warsaw–Cracow 1984, p. 356.

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acter means not actually forcing the employees to participate in a strike against their will but exerting mental pressure. However, it is possible to imagine a situa-tion where employees are physically forced to refrain from working (for example when one employee locks all other employees up and they are therefore unable to perform work). In such case the behaviour of these employees will not be strike because they are not willing to organize and carry out a strike.

6.2. Personal restrictionsA strike is not a measure available to all persons performing work under an

employment relationship. The legislature introduced a number of restrictions in this regard. Such restrictions are motivated, on one hand, by the goal of ensur-ing an efficient operation of the state and its security and on the other hand, by the goal of eliminating threats to public order as well as life and health of persons who stay in the territory of Poland. Some of the formal restrictions should also be considered an effort to eliminate the risk of chaos in conducting the strike.

First, it should be noted that the right to carry out a labour dispute and con-sequently a strike is granted exclusively to trade unions. It is aimed to ensure that strike is organised in compliance with the requirements laid down in the Act on resolution of collective disputes and that it is possible to identify the organisers of the strike if such rules are violated. The monopoly of strike organisations is also to ensure that strikes are not initiated too rashly. According to a prevailing view, such approach is appropriate. Apart from the above arguments, it is supported also by the fact that only trade unionists enjoy protection against dismissal and a strike is such a complex process that it needs to be coordinated by persons with certain experience177. Without denying the rationality of the abovementioned standpoint, it is worth noting that the current arrangements significantly restrict the right to strike as regards the employees who work at the establishment where no trade union operates. Consequently, a large number of employed persons do not have the possibility to force the employer to make concessions178, and this undoubtedly increases tension between the social partners and does not contrib-ute to building permanent social peace. This standpoint is particularly relevant if we treat strike as a personal right of every employee and not only of employees

177 M. Seweryński, Problemy… [Legal…], p. 120–121; B. Cudowski, Reprezentacja praw… [Rep-resentation of workers’…], p. 314–315.

178 Although the employee may seek help in this respect from a trade union organisation at another employer’s establishment but he cannot be guaranteed that such organisation will be ready to conduct such collective dispute, and moreover it is unlikely that the employees decide to entrust their interests to an organisation the activities of which are beyond their control.

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represented by a trade union179. Moreover, also the so-called negative trade un-ion freedom requires accepting that the right to strike should be independent of the functioning of a trade union. And finally, the international treaties to which Poland is a party provide that employees should be free to indicate the entity to represent them in a collective dispute and a strike. An example is a standpoint developed under Art. 6 of the European Social Charter180.

A formula should be found under which a strike does not have to be organ-ised by a trade union organisation, nevertheless a full freedom in this respect does not seem appropriate. If there were no restrictions regarding the entities who may initiate and conduct a strike, it might lead to an extensive chaos at the establishment and a permanent destruction of social peace. Perhaps it could be appropriate to grant this right also to strike committees who receive support from the workforce.

Certain groups of workers were deprived of the right to strike. According to the Act on resolution of collective disputes, a strike cannot be organised in the Internal Security Agency (Agencja Bezpieczeństwa Wewnętrznego), Foreign Intel-ligence Agency (Agencja Wywiadu), Military Counterintelligence Service (Służba Kontrwywiadu Wojskowego), Military Intelligence Service (Służba Wywiadu Wo-jskowego), Central Anticorruption Bureau (Centralne Biuro Antykorupcyjne), in the units of Police and Armed Forces of the Republic of Poland, National Cus-toms and Treasury Service and fire safety units (Art. 19(2) of the Act on res-olution of collective disputes). The right to strike is not granted to employees employed in the public authorities, central and local government administration, courts and prosecution service181 (Art. 19(3) of the Act on resolution of collective disputes). For example, this will apply to the employees of:– the Sejm Office, the Senate Office, the President Office, the Prime Minister

Office,− particular ministries,

179 It has been pointed out in the jurisprudence that the right to strike should be considered an individual right of every employee the exercise of which is collective. The right to strike is considered a personal right. It is argued that the right to strike is a primary right and determines the right of a trade union to organise a strike. T. Wrocławska, Prawo do strajku w prawie pracy państw bałtyckich w świetle prawa międzynarodowego [The right to strike in the labour laws of Baltic states and in inter-national law], Poznań 2007, p. 74–77 and the literature referenced there.

180 A.M. Świątkowski, Europejska Karta Społeczna [European Social Charter], Warsaw 2006, p. 386 and following; B. Paździor, Strajk… [Strike…], p. 45–52.

181 M. Kurzynoga, Prawo do wszczęcia sporu zbiorowego oraz prawo do akcji zbiorowych osób zarobkowo wykonujących pracę niebędących pracownikami [The right to initiate a collective dispute and the right to collective actions of non-employees engaged in gainful employment], MoPr 2004, No. 12, p. 624–626.

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− national and central offices (for example: the Central Customs Office (Główny Urząd Ceł), the General Customs Inspectorate (Generalny Inspektorat Celny), the National Security Bureau (Biuro Bezpieczeństwa Narodowego), the Securi-ties and Exchange Commission (Komisja Papierów Wartościowych i Giełd), the National Atomic Energy Agency (Państwowa Agencja Atomistyki), the State Election Commission (Państwowa Komisja Wyborcza), the Office of the Committee for European Integration (Urząd Komitetu Integracji Europejskiej), the Public Procurement Office (Urząd Zamówień Publicznych), the Office for War Veterans and Victims of Oppression (Urząd do spraw Kombatantów i Osób Represjonowanych), the Office of Technical Inspection (Urząd Dozoru Technicz-nego), the National Employment Office (Krajowy Urząd Pracy), the State Mining Authority (Wyższy Urząd Górniczy), the Patent Office (Urząd Patentowy), the Office of Competition and Consumer Protection (Urząd Ochrony Konkurencji i Konsumentów), the National Land Survey Office (Urząd Głównego Geodety Kraju), the Central Standardisation Inspectorate (Centralny Inspektorat Standa-ryzacji), the General Civil Aviation Inspectorate (Główny Inspektorat Lotnictwa Cywilnego), the Central Customs Office (Główny Urząd Ceł), the National Reserve Board (Główny Zarząd Rezerw Państwowych), the Chief Inspectorate of Environmental Protection (Główny Inspektorat Ochrony Środowiska), the General Customs Inspectorate (Generalny Inspektorat Celny), the Bureau of the Inspector General for the Protection of Personal Data (Biuro Generalnego Inspektora Ochrony Danych Osobowych), the General Directorate of State Forests (Dyrekcja Generalna Lasów Państwowych), the Central Flood Control Com-mittee (Główny Komitet Przeciwpowodziowy), the National Council of the Judi-ciary of Poland (Krajowa Rada Sądownictwa), the National Broadcasting Council (Krajowa Rada Radiofonii i Telewizji), the National Office of the State Election Commission (Biuro Krajowe Państwowej Komisji Wyborczej), the National Rescue Coordination Center (Krajowe Centrum Koordynacji Ratownictwa), the Polish Committee of Standardisation (Polski Komitet Normalizacyjny),

− government administration offices (such as voivodeship offices),− specialised administration offices [such as tax offices and tax chambers, cus-

toms offices and the bodies of: the National Labour Inspectorate (Państwowa Inspekcja Pracy), the National Inspectorate of Environmental Protection (Państwowa Inspekcja Ochrony Środowiska), the National Trade Inspec-torate (Państwowa Inspekcja Handlowa), the National Veterinary Inspection (Państwowa Inspekcja Weterynaryjna), the Main Inspectorate of Plant Health (Państwowa Inspekcja Ochrony Roślin), the National Telecommunications and Posts Inspectorate (Państwowa Inspekcja Telekomunikacyjna i Pocztowa), the State Agency for the Protection of Monuments (Państwowa Służba Ochrony Zabytków)],

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− local government administration offices (such as municipal, poviat offices) and municipal police,

− courts of general jurisdiction (district, regional and courts of appeal),− special courts (such as voivodeship administrative courts),− the Supreme Court,− the Supreme Administrative Court,− the general and military prosecution units182.

The above exclusion is motivated by the necessity to ensure continuous op-erations of the key state authorities. It must be kept in mind that social peace is not an absolute value. Depending on the circumstances, it may be necessary for the social peace to give place to such values as security, public order or well-being of the society. Moreover, social peace cannot be treated as the goal by itself. It is an element of a broader structure of peaceful relations in the society. If the right to strike was granted to the groups of employees listed in Art. 19 (2) and (3), it might accelerate the process of development of peaceful relations between those groups and their employers, but it would pose a risk to the security of state and its citizens. Moreover, a commitment to ensuring the social peace by taking strike action by the employees employed in such units might disrupt the social peace in other work establishments183 (for example, lack of efficient operations of govern-ment administration may cause difficulties in the operations of private undertak-ings and therefore create tensions between the employer and the employees in such undertakings). The above arguments allow concluding that the legislature has, in principle, properly balanced the need to ensure the social peace and the requirement to ensure proper functioning of the state. Therefore, not granting the right to strike to certain groups of workers should be considered legitimate and reasonable. However, certain doubts arise whether deprivation of the right to strike of all employees employed in the units listed in Art. 19 (3) of the Act on resolution of collective disputes is sufficiently justified by the need for protec-tion of public good. The answer to such question should be negative. A strike of employees who do not perform public functions, as a general rule does not pose a risk to the public good or the risk is so insignificant that it does not justify ex-clusion of the right to strike. Therefore, the list of persons who cannot initiate strike should be limited to include only those persons who actually perform du-ties relevant in terms of the public good. Undoubtedly, such limitation will allow accomplishing, to a greater extent, the idea of social peace in the units of the state administration in a broad sense.

182 D. Książek, K.W. Baran, Zbiorowe prawo pracy [Collective Labour Law], Warsaw 2016, p. 445–446.

183 T. Wrocławska, Prawo… [The right…], p. 110.

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Apart from deprivation of the employees employed with employers of cer-tain type of the right to initiate strike, the Act on resolution of collective disputes restricts such right also in relation to certain types of positions184. According to Art. 19 (1) of the Act on resolution of collective disputes „the stoppage of work as a result of a strike action in the work positions, on installations and equipment where such stoppage poses risk to human life or health or jeopardises the state security, is prohibited”. The above provision does not introduce a general prohi-bition to strike in relation to some occupational groups or types of work estab-lishments but merely excludes this right in relation to certain employees in the situations where their cessation of work would threaten the life, health or safety of other persons. Such restriction will usually be justified in healthcare facilities, social assistance, communication, energy, transport, emergency or public utilities units. Determination which employees, in which positions in accordance with Art. 19 (1) of the collective disputes act, cannot strike, requires assessment of the overall situation at the establishment and the assessment in relation to the specific collective dispute. It may appear that, at the same establishment, on a given day, the employees will have to refrain from working at a greater number of worksta-tions than on the previous day (for example because of the increased number of persons on strike or increased demand for the services of the unit concerned, for example a hospital).

Even if identification of situations in which refraining from work may pose risk to life or health is relatively easy, it is not fully clear at what point the state security is threatened. There are specific criteria which should be taken into ac-count. The risk/threat should be objective and should be caused by actual and not only potential circumstances185. In this regard the provisions of the Act on natural calamities186 may be useful, the act provides that:– a natural calamity shall be understood to mean a natural disaster or a technical

failure the consequences of which pose risk to life or health of a large number of persons, to a property in large size or to the environment in large areas, and the assistance and protection may be effectively undertaken only with the use of emergency measures, in cooperation with various authorities and institu-

184 M. Kurzynoga, Zapewnienie usług minimalnych w czasie strajku – uwagi de lege ferenda [Provision of minimal services during strike – de lege ferenda comments], [in:] Z. Hajn, D. Skupień (eds), Przyszłość prawa pracy. Liber Amicorum. W pięćdziesięciolecie pracy naukowej Profesora Michała Seweryńskiego [The future of labour law. Liber Amicorum. On the fiftieth anniversary of academic work of professor Michał Seweryński], Łódź 2015, p. 539–555.

185 W. Masewicz, Ustawa z 23.5.1991 r. o rozwiązywaniu sporów zbiorowych. Komentarz [The act on resolution of collective disputes of 23.5.1991. Commentary], Warsaw 1992, p. 55; K.W. Baran, Zbiorowe prawo pracy. Komentarz [Collective Labour Law. Commentary], Warsaw 2007, p. 418.

186 The Act of 18.4.2002 on natural calamities (ustawa o stanie klęski żywiołowej) (Journal of Laws [Dz.U.] of 2014, item 333).

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tions and specialised services and formations under uniform management (Art. 3 (1) of the abovementioned act),

– a natural disaster shall be understood to mean an event associated with the acts of God, in particular lightning, earthquakes, strong winds, high rainfall, long-lasting extreme temperatures, landslides, fires, droughts, floods, ice on rivers, seas, lakes and water basins, outbreaks of pests, animal or plant diseases or communicable human diseases or activity of other natural forces (Art. 3 (1)(2) of the abovementioned act),

– a technical failure shall be understood to mean a sudden, unexpected damage or destruction of a building, technical equipment or technical equipment system, resulting in interruption of their use or loss of their properties (Art. 3 (1)(3) of the abovementioned act).The above definitions are for information purposes only. The national secu-

rity in axiological terms should be understood to mean a threat to a broadly un-derstood interest of the state which may arise both as a result of internal and ex-ternal events or circumstances. It is rightly pointed out that the national security includes also protection of economic interest187. In this latter case the possibil-ity to restrict the right to strike should be taken with great caution. Determina-tion at which point the economic security of state is threatened may be difficult and should relate only to the situations when there is a significant (and not any) threat/risk to the economic objectives.

In the Polish jurisprudence there was a great deal of discussions concerning the scope of refraining from strike by the medical personnel. There are diverging opinions presented in this regard. According to the first opinion, all medical per-sonnel, and at least all doctors should be subject to the restrictions laid down in Art. 19 (1) of the collective disputes act; each limited performance of their duties might pose a potential risk to life or at least health of patients188. According to an opposite opinion, it is not possible to exclude, a priori, the possibility that doctors and other healthcare professionals conduct a strike, however, it should be taken with great caution and any doubts should be interpreted in favour of application of the restrictions laid down in Art. 19 (1) of the Act on resolution of collective disputes189. The latter opinion should be considered appropriate. Under the act currently in force there are no grounds for introduction of a general prohibition

187 J. Żołyński, Aksjologiczne podstawy wyłączenia prawa do strajku [Axiological foundations of the exclusion of the right to strike], [in:] A. Kalisz (ed.), Prawa człowieka. Współczesne zjawiska, wyzwania, zagrożenia [Human rights. Contemporary phenomena, challenges and threats], vol. 2, Sos-nowiec 2015, p. 202.

188 B. Cudowski, Spory… [Collective…], p. 134.189 D. Książek, K.W. Baran, [in:] K.W. Baran (ed.), Zbiorowe prawo pracy. Komentarz [Collective

Labour Law. Commentary], Warsaw 2016, p. 442.

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to strike in the healthcare facilities, in particular in relation to non-medical per-sonnel employed in such units. Such interpretation is supported also by the com-mitment to ensure social peace in the broadest sense. The exclusion of the right to strike of such a large group would result in intensification of a conflict and lack of means to settle such conflict in a situation where amicable methods have failed. This might result in an attempt to resolve such conflicts through collective ac-tions not provided for by law. For the sake of social peace, the existing conflicts should be mitigated also by the possibility to strike. Of course, account should also be taken of the public good that is the protection of life and health of pa-tients. For that reason many legal commentators postulate amendment of the reg-ulations governing strike in the healthcare facilities190. Particularly interesting is a standpoint presented by K.W. Baran according to which a procedure should be implemented which allows control by the courts of the legality of a commenced or planned strike191. Although the author proposes that the party entitled to ini-tiate such proceedings should be a public prosecutor, it appears that such right should be granted first of all to an employer as a party directly interested in the proper operations of his establishment.

It should be noted that the legislature, in introducing the material limitations of the right to strike in the positions in which cessation of work poses risk to hu-man life or health or state security, used a number of vague expressions. As a con-sequence, their designators should be specified with great caution. A too broad catalogue of cases where the right to strike is excluded might significantly weaken the meaning of that right and consequently might hamper development of the social peace. Moreover, the vagueness of the used terms may cause interpreta-tion difficulties and raise doubts as to their meaning. For that reason, when in-terpreting the grounds for restriction of the right to strike, consideration should be given first to the teological and systemic interpretation and only then to the literal interpretation192.

190 See for example an opinion of A.M. Świątkowski who argues that a strike should be fully avail-able to non-operational staff of the public healthcare facilities (see: A.M. Świątkowski, [in:] J. Wratny, K. Walczak (eds), Zbiorowe prawo pracy. Komentarz [Collective Labour Law. Commentary], Warsaw 2010, p. 405–406 or an opinion of B. Cudowski who calls for an absolute ban of strike for all doctors (see: B. Cudowski, Spory… [Collective…], p. 134).

191 K.W. Baran, Zbiorowe prawo pracy. Komentarz [Collective Labour Law. Commentary], Warsaw 2007, p. 418.

192 J. Żołyński, Aksjologiczne… [Axiological…], p. 205.

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6.3. Rules of initiation of a strike The rules of initiation of a strike were regulated fairly precisely as compared

with other aspects of a strike action.First, it should be noted that commencement of a strike should be preceded

by a so-called waiting period. A strike cannot commence earlier than five days after the employer has been notified of such intention by a trade union organisa-tion (Art. 20 (3) of the Act on resolution of collective disputes). Moreover, under Art. 7 (2) of the abovementioned act a strike cannot be commenced within a pe-riod of 14 days of the date of commencement of a collective dispute. Such periods are called „waiting periods”, „cooling periods” or readiness to strike193. Keeping in mind the pursuit of social peace, the mentioned periods should be consid-ered particularly significant. They are the last chance for amicable resolution of a dispute. During that period the parties may undertake additional negotiation or decide to refer the ongoing dispute for resolution by a social arbitration panel (kolegium arbitrażu społecznego). Therefore, it is a period which allows emotions to cool down. In my opinion it is necessary to call for extension of the period between notification of the intention to commence a strike and its actual com-mencement. Undoubtedly it would lead to increase in the number of cases where the parties reach an agreement without recourse to strike. On the other hand, the waiting period should not be too extensive since it would weaken the function of strike and reduce its importance as a mean of pressure on the employer. In my opinion it would be best if the cooling period was 10 to 14 days following notifi-cation of the intention to commence a strike.

Another condition sine qua non for the lawful commencement of strike is workers’ consent to the strike. According to Art. 20 (1), a workplace strike is declared by a trade union organisation upon consent of the majority of vot-ing employees if at least 50% of employees of the establishment concerned vot-ed. On the other hand, a multi-employer (multi-establishmen t) strike (strajk wielozakładowy) may be declared by an authority named in the statutes upon obtaining consent of a majority of voting employees in the particular establish-ments which are to be covered by the strike, if at least 50% of employees at each of those establishments voted (Art. 20 (2)). It can be questioned whether the es-tablished thresholds of the number of workers who must vote for the strike so that it can take place are not too low. In extreme situations it may appear that to organise a strike it is sufficient where 25% of workers vote for such action. Con-sequently a strike could commence where a majority of employees was not in-

193 L. Florek, Niektóre problemy prawa do strajku w ujęciu porównawczym [Some issues relating to the right to strike – a comparative approach], PiP 1980, No. 10, p. 31.

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terested in cessation of work194. Therefore, a strike could be used not to reach an agreement but to exert pressure on the employer to satisfy demands of the minority of employees against the wishes of the majority of staff. This would be contrary to the pursuit of social peace covering all employed persons. However, there should be no such fear. The requirement that the voting should be attend-ed by at least 50% of the employees allows preventing the strike where the ma-jority of workers are against it. The opinions according to which voting should be only among the workers who participate in the collective dispute should not be accepted195. Supporters of this view point out that a different interpretation (based for example on the wording of the provisions of the Act on resolution of collective disputes) would pose a risk of deprivation of employees of a signifi-cant mean of exerting pressure which is strike in the situations when the major-ity of staff was not interested in the demands constituting the subject-matter of the collective dispute196. Even if this argument can be considered right, still the acceptance of such mechanism might be too harmful to the persons not inter-ested in a dispute with the employer – a small group of workers could paralyse the whole undertaking.

Certain doubts arise as to whether in determining the proportion of employ-ees who voted, the absent employees (because of unpaid leave, maternity leave or incapacity for work) should also be taken into account. In my opinion these per-sons should also be taken into account when quorum is counted197. Even if they are absent, still the strike may affect their situation and therefore they should not be ignored when a decision on strike is taken, in particular given the fact that the Act on resolution of collective disputes does not explicitly deprive such persons of the right to vote in the referendum198.

These provisions do not regulate the procedure and the rules for holding a strike referendum. It should be assumed that the referendum should be an-nounced in such a way as to ensure that all employees know that the referendum will be held and know its date and place. It serves as an additional guarantee pre-venting abuse and initiation of strike against the will of the majority of employ-ees. Worth noting is a standpoint of the Polish Supreme Court according to which

194 B. Cudowski, Model… [A model…], p. 249.195 H. Lewandowski, Komentarz do ustawy o rozwiązywaniu sporów zbiorowych [Commentary

to the act on resolution of collective disputes], [in:] Z. Salwa (ed.), Prawo pracy [Labour law], Warsaw 1998, vol. 3, p. III/E/158–157.

196 H. Lewandowski, Opinia prawa w sprawie niektórych warunków legalności strajku lekarzy [Legal opinion on certain conditions for legality of medical strike], 22.5.2006, cited after M. Kurzynoga, Warunki… [Conditions…], p. 112–114.

197 Such standpoint was presented by K.W. Baran, Zbiorowe prawo pracy [Collective Labour Law], Cracow 2002, p. 309. An oposite opinion was presented by T. Wrocławska, Prawo… [The right…], p. 99.

198 E. Wronikowska, Problemy… [Legal…], p. 289.

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„a trade union may declare and conduct a strike only upon consent of the major-ity of workers, otherwise it will be subject to sanctions laid down in Art. 26 (2) of the Act on resolution of collective disputes. The right to strike is the right of workers and not a right of a trade union, therefore a trade union cannot organise a strike without a decision of the entitled parties”199.

A strike referendum should be conducted by a trade union initiating the col-lective dispute. In the event where a collective dispute is conducted by several trade unions they should appoint a joint representation responsible for organisa-tion of the referendum200.

The referendum may relate only to the issues which were raised in the ongo-ing collective dispute. The demands which were not raised in the course of the collective dispute cannot be put to the vote201.

The act does not specify when the referendum should take place. The wording of Art. 20 (3) of the Act on resolution of collective disputes implies that it should be held at least 5 days before the date of commencement of strike. This means that the strike may be conducted already at the stage of negotiations or media-tion. I am critical of such approach. It does not promote development of social peace. Negotiations and mediation are conciliatory measures. If they were con-ducted during the strike referendum, it would often adversely affect the nego-tiations between an employer and a trade union and would therefore make it difficult for them to reach the agreement ending the dispute. Therefore, worth considering is introduction of such regulations which would allow the strike ref-erendum to be held only after the mediation, or at least after the stage of nego-tiations, has ended.

Voting on the planned strike may be conducted in any form. In particular it may be open202. As noted by the Supreme Court, although a form of the refer-endum is an internal matter for a trade union, the referendum cannot be organ-ised in a manner which would prevent free expression of will by the employees, for example by exerting pressure on the voters or falsifying the results203. In view of this, the open referendum should be criticised. The open voting entails a risk of pressure on the voters and a risk that they are deprived of their freedom to decide204.

199 A judgment of the Supreme Court of 17.2.2005, II PK 217/04, OSNP 2005, No. 18, item 285.200 M. Kurzynoga, Warunki… [Conditions…], p. 201.201 The above is derived from the principle of identity of demands in the course of the entire

collective dispute; see a judgment of the Supreme Court of 17.2.2005, II PK 217/04, OSNP 2005, No. 18, item 285.

202 Z. Salwa, Uprawnienia… [Rights…], p. 152.203 A judgment of the Supreme Court of 7.2.2007, I PK 209/06, OSNP 2008, No. 5–6, item 65.204 B. Cudowski, A commentary to a judgment of the Supreme Court of 17.2.2005, OSP 2006,

No. 3, item 28.

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There are no regulations governing how long the referendum should or may last205. There is no doubt that the duration of the referendum should be such as to ensure that all employees can cast a vote. A referendum which lasts for several days is acceptable. On the other hand, it is a controversial practice when a strike referendum lasts for several months until the limits of voters required by the Act on resolution of collective disputes are achieved. Even if formally it is not pro-hibited, it should be considered that such referendum will be ineffective. In such situation there are serious doubts whether the employees who voted during the first phase of the referendum still maintain their previously expressed positions. Such uncertainty as to the actual decision of workers regarding the willingness to strike should be considered contrary to the idea of social peace. The workers who voted against strike or who changed their opinion in the course of a long ref-erendum may feel harmed by the fact of commencement of the strike. This will lead to tensions between workers and consequently it will be more difficult to end the collective dispute.

Although it is not stipulated explicitly in the Act on resolution of collective disputes, it should be assumed that a court is entitled to examine the correct-ness of the referendum in the course of the procedure in which legality of strike is examined206. As regards the results of the strike referendum, the employer is not entitled to verify them. Such approach should be criticised. It does not fos-ter building of social peace for several reasons. First, the lack of the possibility to verify whether the given results of the referendum are true raises doubts on the part of the employer and weakens the mutual confidence between the parties to a collective dispute. Second, the lack of independent control may lead to a cli-mate of impunity among the trade union activists and give rise to abuses. For the above reasons, it is appropriate to introduce a mechanism which would allow the employer to address an independent body and request assessment of correctness of the procedure for initiation of a strike, in particular with respect to the strike referendum procedure.

6.4. The principles of conduct of a strike The Polish Act on resolution of collective disputes lays down a number

of principles to be followed by the employer and the employees in the course of a strike.

205 M. Kurzynoga, Referendum strajkowe jako przesłanka legalnego strajku [Strike referendum as a condition for a legal strike], PiZS 2008, No. 10, p. 20 ff.

206 A judgment of the Supreme Court of 7.2.2007, I PK 209/06, OSNP 2008, No. 5–6, item 65.

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6.4.1. Ultima ratio (the last resort) principleFirst, it should be stressed that a strike can be conducted only after negotia-

tions and mediation have ended. This is called the ultima ratio (the last resort) principle. In my opinion this principle is of major importance for the preserva-tion of social peace. The obligation to conduct a direct dialogue or a dialogue with the participation of a mediator before initiation of a strike first fosters the amicable resolution of a conflict between the parties to a workplace social dia-logue; second, it guarantees that the strike will be for resolution of major prob-lems occurring at the establishment concerned.

The legislature introduced two exceptions to the ultima ratio principle. First, a trade union may start a strike without the negotiation and mediation procedure if the unlawful activity of the employer prevented the negotiations or mediation (Art. 17 (2) of the Act on resolution of collective disputes). There are several situ-ations pointed out in legal writings where irenic methods of resolution of collec-tive disputes are hindered207. First, it will be a situation where an employer does not join the negotiations or mediation. It may also be an intentional protraction of the negotiations (mediation) by the employer208. For example, it may involve refusal to sign a discrepancy report (protokół rozbieżności). Representatives of jurisprudence point out that immediate commencement of a strike may also be justified where the employer uses pressure or blackmail towards trade unions or refuses to provide information necessary for the trade union to conduct the col-lective dispute209.

The second category of cases where the mediation and negotiations can be omitted before commencement of a strike is where an employment relationship is ended with a trade union activist involved in a dispute (Art. 17 (2) of the Act on resolution of collective disputes). The legislature did not define the term „trade union activist”. According to K.W. Baran, the persons who enjoy the trade union activist status are all persons listed in Art. 32 of the Act on trade unions as well as other trade union members if they were appointed by a governing body of the un-ion to represent workers210. An opposite view was presented by A.M. Świątkowski who argued that a person in a dispute may be any person engaged by a party to a collective dispute or by an organisation representing the interests of such party.

207 M. Sękara, Wybrane aspekty pojęcia strajku i wolności strajkowej w systemie prawa polskiego [Selected aspects of strike and the freedom to strike in the Polish legal system], Studia z zakresu prawa pracy 2005, p. 171.

208 W. Masewicz, Ustawa o związkach zawodowych. Ustawa o rozwiązywaniu sporów zbiorowych [Act on trade unions. Act on resolution of collective disputes], Warsaw 1998, p. 169.

209 Ibidem.210 K.W. Baran, Zbiorowe prawo pracy. Komentarz [Collective Labour Law. Commentary], Warsaw

2007, p. 249.

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According to the author, a trade union activist does not have to be a member of a trade union or, all the more, a member of a statutory body of a trade union211. In my opinion the latter standpoint is more appropriate212. The responsibility for conducting a collective dispute does not always lie with persons who are mem-bers of governing bodies of a trade union. Article 17 (2) of the Act on resolution of collective disputes is aimed at protection of the social peace understood as the established form of resolution of conflicts between the employer and the employ-ees. Dismissal of a person who is responsible for conducting the dispute consti-tutes violation of the social peace and should be punishable.

In my opinion the above regulations are of major importance in terms of building the social peace. The possibility to immediately commence a strike al-lows the workers to prevent obstruction by the employer in the collective dis-pute resulting in hampering the process of reaching an understanding between the parties to the workplace social dialogue. One might even wonder whether it would not be preferable to directly introduce in the act a regulation according to which a trade union shall be entitled to commence a strike if the employer re-fuses to sign a discrepancy report. Such situations are the most frequent exam-ples of protraction by the employers of the amicable forms of resolution of col-lective disputes.

6.4.2. Principle of limited cooperation of the organizer of strike with the employer

The principle of limited cooperation of the organizer of strike with the em-ployer is laid down in Art. 21 (2) of the Act on resolution of collective disputes. According to this principle an organiser of strike must cooperate with the man-ager of the work establishment to the extent necessary to ensure protection of employer’s property and uninterrupted operation of the facilities, equipment and installations, the disruption of which might pose risk to human life or health or prevent resumption of regular operations of the establishment.

The purpose of the above prohibition is, on one hand, the protection of such values as human life and health and, on the other hand, protection of employ-er’s interests. As regards the latter, the cooperation of organisers of strike should eliminate the risk of occurrence of situations in which strike would result in ir-reparable damage causing loss of possibility to resume operations at the estab-

211 A.M. Świątkowski, [in:] J. Wratny, K. Walczak (eds), Zbiorowe prawo pracy [Collective Labour Law], Warsaw a 2008, p. 390–391.

212 The same opinion was presented by Z. Góral, [in:] I. Boruta, Z. Góral, Z. Hajn, Komentarz do ustawy: o związkach zawodowych, organizacjach pracodawców, rozwiązywaniu sporów zbiorowych [Commentary to the act on trade unions, employers’ organisations and resolution of collective disputes], Łódź 1991, p. 132–133; M. Kurzynoga, Warunki… [Conditions…], p. 194.

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lishment where the strike took place. I think that the obligation to cooperate with the employer, in particular with regard to the protection of interests of the latter, is of major importance in terms of the social peace. Strike is the activity which intensifies the conflict between the parties. For that reason it is necessary to im-plement measures to mitigate such conflict. The obligation to maintain the min-imum contacts so as to prevent irreparable damage to the employer contributes to mitigation of the existing tensions and it primarily facilitates normalisation of mutual relations after the end of the collective dispute. Accordingly, Art. 21 (2) of the Act on resolution of collective disputes should be interpreted broadly and any doubts should be resolved in favour of the obligation to cooperate.

The laws do not specify the form of the cooperation between the organisers of strike and the employer. These may be either the activities which facilitate cer-tain actions of the employer at the workplace or the activities which require the employees to take up all or a part of their duties. In my opinion, under Art. 21 (2) of the Act on resolution of collective disputes an employer may demand that the workers on strike undertake work to the extent necessary for the fulfilment of the objectives laid down in the provision in question. Legal scholars mention protec-tion of property against theft, wastage or attacks by third parties213.

It is rightly pointed out that according to the analysed principle the trade unions during strike are co-responsible for the management of the work establishment.

The scope of cooperation may be informal; however, there is no reason why it should not be regulated in an agreement between the employer and the organ-iser of a strike214.

6.4.3. The principle of unlimited personal freedom of the employer during the strike

The strike is (and legitimizes) a significant restriction of the freedom of em-ployer’s operations, however, it cannot lead to a total exclusion of the right of the employer (owner) to exercise his property rights in relation to the establishment (understood either as a group of assets and as a combination of assets and per-sonnel). For the protection of employer’s rights, the legislature explicitly reserved that during the strike a manager of the work establishment cannot be restricted in exercising his rights and duties in relation to employees who do not partici-pate in the strike and to the extent necessary to ensure the protection of property of the establishment and uninterrupted work of facilities and equipment the dis-

213 J. Żołyński, Ustawa o rozwiązywaniu… [Act on resolution…], p. 130.214 K.W. Baran, Zbiorowe prawo pracy. Komentarz [Collective Labour Law. Commentary], Warsaw

2007, p. 425.

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ruption of which might pose risk to human life or health or prevent resumption of regular operations of the establishment (Art. 21 (1) of the Act on resolution of collective disputes)215.

It means that any behaviour which consists in restricting the managerial rights of the employer should be considered unacceptable216. Therefore, any ac-tions which prevent the employer from managing the employees who decided not to participate in the strike, are prohibited. It is rightly pointed out that accord-ing to this principle the persons on strike are forced to tolerate all the activities undertaken by the employer either alone or through the persons to whom the employer gives instructions in order to maintain normal operations of the work establishment217.

It is also unacceptable to restrict the right of the employer or of persons au-thorized by the latter to enter the premises or access the facilities at the work es-tablishment. It refers not only to the premises or facilities necessary for the nor-mal operations of the establishment but to all buildings and machinery which are a part of the establishment.

The rules governing strike are violated also by a conduct which results in physical restriction of the freedom of a manager of the establishment (for ex-ample when the latter is locked in his office or the entrance to the building is bricked up)218.

It has also been pointed out in the jurisprudence that the prohibition laid down in Art. 21 (1) of the Act on resolution of collective disputes means a pro-hibition to take any action which directly prevents the employees who are not on strike and persons replacing the employees on strike from taking up their du-ties219. This should ensure protection of employer’s property and prevent irrepa-rable damages. The possibility to employ new workers as a replacement for the workers on strike (the so-called strike breakers) should be evaluated critically in the context of the accepted concept of social peace. Hiring new persons to a large extent undermines the effectiveness of strike actions220. The main source of the pressure on the employer is cessation of production and the related damage or

215 J. Żołyński, Obowiązki uczestników i organizatorów strajku [Obligations of the participants and organisers of strike], MoPr 2011, No. 8, p. 397–402.

216 J. Żołyński, Strajk… [Strike…], p. 308.217 A.M. Świątkowski, Rozwiązywanie… [Resolution…], p. 321.218 K.W. Baran, Zbiorowe prawo pracy. Zarys wykładu z kazusami [Collective Labour Law, Outline

and case-law], Cracow–Gdańsk 1998, p. 158.219 A.M. Świątkowski, M. Wujczyk, Polskie… [Polish…], p. 284; J. Żołyński, Strajk… [Strike…],

p. 305.220 B. Cudowski, Podstawowe problemy zbiorowych stosunków pracy z udziałem pracowników

tymczasowych [The major problems of collective labour relations with temporary agency workers], MoPr 2005, No. 4, p. 96.

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risk of damage. Hiring new persons often significantly reduces or even eliminates such pressure. As a result, the employer is no longer interested in negotiating an agreement with the workers on strike or in development of the rules of coopera-tion to the satisfaction of both of the parties. The negative consequence of the employer’s rights arising from Art. 21 (1) of the Act on resolution of collective disputes was identified even by the legislature itself. In the Act on employment of temporary agency workers the legislature introduced a ban on the use of tem-porary agency workers to replace the workers on strike221.

The pursuit of social peace is an argument in favour of introduction of a pro-vision which would prohibit hiring new persons in the positions involved in the ongoing strike. Such prohibition might also include the situations where per-sons replacing the employees on strike are hired under civil law contracts. At the same time such restriction should be subject to certain exceptions. It appears that a good option might be appropriate application of some of the directives laid down in Art. 21 (2) of the Act on resolution of collective disputes. There-fore, the new regulation might permit employment of workers in replacement for the employees on strike exclusively to the extent that it is necessary to pro-tect the property of the work establishment or resume the normal operations of the establishment.

As regards the obligation (resulting from the principle of unlimited personal freedom of the employer during strike) to provide the employer with access to the facilities and to allow the persons who do not participate in the strike to per-form their work, it should be concluded that the laws currently in force establish a proper balance between employer’s rights and rights of workers to strike. Even if undoubtedly it weakens the effect of the strike actions, still account should be taken of the fact that a strike cannot be treated as a superior value to which all other personal rights should be subordinated. The ownership rights are so vital that they cannot be excluded. Worth noting is an opinion presented by the Polish Constitutional Tribunal which held that statutory restrictions of freedom must follow from explicit statutory provisions and must not be implied222. The Con-stitutional Tribunal also held that any restrictions of the ownership rights must be assessed also in terms of general conditions laid down in Art. 31 (3) of the Con-stitution of the Republic of Poland according to which „any restriction upon the exercise of constitutional freedoms and rights may be imposed only when nec-essary in a democratic state for the protection of its security and public order, or

221 According to Art. 8 (2) of the Act on employment of temporary agency workers „a temporary agency worker cannot be assigned to work for the user-employer i n the position occupied by an em-ployee employed by the user-employer, during the period when such employee participates in a strike”.

222 A judgment of the Constitutional Tribunal (TK) of 2.3.1994, W 3/93, OTK 1994, No. 1, item 17.

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to protect the natural environment, health or public morals, or the freedoms and rights of other persons. Such restrictions shall not undermine the essence of such freedoms and rights”223.

In reference to the analysed principle, a question arises regarding the admis-sibility of a sit-down strike (strajk okupacyjny). In my opinion it is an important form of exerting pressure on the employer. For that reason, and in the absence of an explicit ban on such form of the protest, I think that, under certain conditions, a sit-down strike is admissible. The conditions were formulated by J. Żołyński who pointed out that the following conditions must be met in order that a sit-down strike is not considered illegal:– it cannot prevent the employees who do not participate in the strike from

working,– it cannot violate the managerial rights of the employer,– during the sit-down strike the participants cannot use, without consent of the

employer, the means of communication, transport, food or equipment owned by or in possession of the employer,

– a sit-down strike cannot be organised after a certain period of time from the date of announcement of the strike,

– the persons on strike do not enjoy full freedom regarding the occupied place, however, they should not occupy the places where it might pose risk to life or health or might result in occurrence of such risk224.

6.4.4. The principle of reasonableness and equivalenceThe principle of equivalence means that the employees who go on strike

should assess whether the demands they put forward are commensurate with the losses occurred as a result of the strike. In other words, the organisers of strike are obliged to assess whether the purpose they want to achieve is propor-tionate to the consequences which may affect the work establishment as a result of the strike225. This principle is laid down in Art. 17 (3) of the Act on resolution of collective disputes. The organisers of a strike should determine what will be the impact of the strike action on the situation of the employer, taking into ac-count the economic and social situation of the latter. In my opinion a trade un-ion should also take into account the consequences of the strike for the employ-ees who do not participate in it, as well as for employees whose interests are not

223 A judgment of the Constitutional Tribunal (TK) of 12.1.1999, P 2/98, OTK 1999, No. 1, item 2.224 J. Żołyński, Status prawny strajku okupacyjnego [Legal status of a sitdown strike], MoPr 2012,

No. 5, p. 235–237.225 J. Żołyński, Zasada ekwiwalentności ekonomicznej i racjonalności żądań w sporze zbiorowym

[The principle of economic equivalence and reasonableness of demands in a collective dispute], MPP 2012, No. 8, p. 404–409.

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represented in the collective dispute. Under Art. 17 (3) of the collective disputes act, the principle of reasonableness requires that the demands put forward in the strike must be attainable and that meeting such demands is within the compe-tence of the employer226. Even if such requirement is appropriate, it appears that it finds no basis in the aforementioned provision but only in the legal nature of a collective dispute.

Under the principle of proportionality of demands to the potential losses, the Supreme Court expressed an opinion that a form of a hunger strike, by causing potential risk to life or health of an employee is „disproportionate” to the possible financial benefits resulting from that strike, and therefore it is contrary to Art. 17 (3) of the Act on resolution of collective disputes227. It is worth noting that the above standpoint was criticised by some representatives of jurisprudence who pointed out that a hunger strike, even if it should not be approved, still should be recognised not in legal but in moral categories228. I do not share the latter opin-ion. Exerting pressure on the employer by threatening him with the risk to life or health of employees is unacceptable. This puts the employer in a very difficult or even a losing position and raises questions whether any substantive negotiations are possible in such conditions.

A question arises how to assess the principle of proportionality of demands to the potential losses in the context of the pursuit of social peace. Undoubtedly, it restricts the employees in the cases where they can demand change of wage or working conditions, change of social benefits or trade union freedoms. Therefore, the effectiveness of strike as a mean of pressure is reduced. However, it should be kept in mind that a strike should not be an end in itself but only a tool to achieve a compromise. However, the compromise should not lead to a situation where the employer or other employees are harmed to an extent disproportionate to the demands put forward by the organisers of strike. Even if the axiology underly-ing Art. 17 (3) of the Act on resolution of collective disputes should be accepted, still the manner in which the legislature is trying to define the principle of pro-portionality must be criticised229. It should be noted that very often the losses in-curred as a result of strike are greater than the profits attained by the employees as a result of meeting their demands. Therefore, in my opinion the scope of the

226 K.W. Baran, Zbiorowe prawo pracy [Collective Labour Law], Cracow 2002, p. 305; H. Le-wandowski, Spory zbiorowe pracy… [Collective disputes...], p. 142–144; P. Korus, Strajk… [Illegal…], p. 145–158.

227 A judgment of the Supreme Court of 27.11.1997, I PKN 393/97, OSP 199, No. 3, item 51.228 B. Cudowski, Reprezentacja praw… [Representation of workers’…], p. 321.229 B. Cudowski, Spory zbiorowe pracy w Polsce (w dwudziestolecie obowiązywania ustawy

z 1991 roku) [Collective labour disputes in Poland (on the 20th anniversary of the act of 1991)], [in:] G. Goździewicz (ed.), Aktualne problemy zbiorowego prawa pracy w Polsce i Niemczech [Current problems of the collective labour law in Poland and in Germany], p. 107.

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principle of reasonableness is too broad under the laws in force. It would be ad-visable that the laws restrict the possibility to strike in a situation when it poses a risk of irreparable loss to the employer or to employees who do not participate in the strike.

6.5. Status of a strike committeeThe Act on resolution of collective disputes does not provide for a strike com-

mittee (komitet strajkowy). However, very often when a dispute is initiated, the committee is the body which in fact manages the strike. It can be said that the committee is a body appointed by the organisers of a strike to conduct the strike. The composition of the committee is specified by the organisers of a collective dispute which is a workplace trade union organisation. The strike committee be-comes particularly important in a situation where a collective dispute and a strike are conducted jointly by several collective organisations230. In such case the strike committee is clearly distinguished from trade unions.

J. Żołyński defines the strike committee as „a part of a formal structure of a trade union appointed for the duration of a strike”231 or as a „structure of trade union confederation appointed from among several trade unions”232. Accord-ing to the author, a strike committee may be composed of members of statutory bodies of a trade union, ordinary members of a trade union organisation, non-unionised workers, persons from outside a trade union such as for example pro-fessional representatives, advisors, experts, representatives of a trade union who joined the ongoing collective dispute, or members of various trade unions who conduct a dispute regarding the same matters233.

Because of the fact that a strike committee is not provided for in law, its pow-ers are derived from the powers of organisers of a strike. It should be considered that members of the committee exercise such powers under an authorisation granted to them by the organisers of a collective dispute. The competences of the strike committee include: holding a strike referendum, announcement of results of the referendum, declaration of a strike, concluding an agreement with an em-ployer regarding rules of cooperation during a strike. The strike committee has also a number of responsibilities. These include an obligation to warn the em-ployer of the planned strike, an obligation to comply with the OHS regulations,

230 W. Masewicz, Prawna regulacja sposobów rozwiązywania sporów zbiorowych pracy w świetle praktyki. Doświadczenia polskie [Legal regulation of the methods of resolution of collective labour disputes – practical aspects. Polish experiences], PiZS 1994, No. 2, p. 12.

231 J. Żołyński, Strajk… [Strike…], p. 361.232 Ibidem, p. 362.233 Ibidem, p. 361–362.

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prohibition on blocking a work establishment, an obligation to provide any help and assistance to the employees if any of them sustains an accident.

However, a strike committee cannot be considered a simple extension of pow-ers of a trade union initiating a collective dispute. What proves the autonomous nature of the strike committee is that it performs a number of activities which de-termine the method of conducting a strike. The committee determines what ac-tivities should be taken and when they should be taken during the strike, discuss-es with the employees on strike, represents the persons on strike in the media, ensures technical resources necessary for the strike action (such as food supplies for the persons on strike). Particularly important, in terms of the autonomy of the strike committee, is its authorisation to give binding instructions to the per-sons on strike. The strike committee as an entity managing the strike must have the powers to conduct the strike in such a manner so as to ensure that the laws in force are not breached234. The independence of the committee is also confirmed by its right to cooperate with the employer and to make arrangements with the employer in order to ensure safety of the employees on strike but also those em-ployees who did not join the strike235.

Despite such actual separation of the strike committee in the strike procedure, the committee is in fact not liable for its activities. As an entity without a legal capacity and even without a statutory authorisation it cannot be held liable for the damage caused as a result of its activities. Therefore, such liability is imposed either on individual members of the strike committee or on trade union(s) initi-ating the collective dispute.

The above duality of authority in the course of a strike should be criticised. In my opinion it is contrary to the principle of a single management of a strike. Under this principle, during the strike there should be one decision-making cen-tre for the persons on strike236. Appointment of a strike committee as an entity without a clearly defined scope of powers, in many instances may lead to dual or multiple management of a strike. Therefore, a question should be asked about a regulation of the status of the strike committee, in particular in the situations where a strike is co-organised by several trade union organisations.

234 I am critical of the view presented in the literature according to which the employees who do not participate in a strike should also be bound by the recommendations of the strike committee. In my opinion there are no grounds for granting such powers to the strike committee. Such opinion was expressed by J. Żołyński, Strajk… [Strike…], p. 361–362.

235 It reflects the principle of limited cooperation between organisers of strike and the employer. see more in: A.M. Świątkowski, M. Wujczyk, Polskie… [Polish…], p. 276.

236 J. Żołyński, Aksjologiczne, normatywne i społeczne podstawy prawa rozwiązywania sporów zbiorowych pracy [Axiological, normative and social grounds for resolution of collective labour disputes], Gdańsk 2016, p. 277.

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6.6. A status of employees during the strikeAn employee who participates in a strike is not deprived of his status arising

from the contract of employment concluded with the employer. Therefore, for the entire duration of strike, he remains in the employment relationship. This af-fects both the rights and the obligations of an employee.

First, because of the continuity of employment, the period of strike is includ-ed in the seniority of service of an employee. Consequently, an employee may also during a strike acquire the rights to a seniority bonus (nagroda jubileuszowa) if during the strike he exceeds the limits of years of service which give entitle-ment to such bonus.

The period of strike is taken into account as a period of employment for de-termination of social insurance benefits. Moreover, under Art. 23 (2) of the Act on resolution of collective disputes, during a legal strike an employee retains the right to social insurance benefits. In particular, it means than an employee is en-titled to sickness or maternity benefits.

An accident sustained by an employee during strike should be treated as an accident at work. The Supreme Court held that employee’s participation in a strike at the work establishment does not mean that a link with employment has been automatically broken; therefore, the employee retains the right to benefits in respect of accidents at work237. Although the mentioned ruling was adopted under the previously applicable legislation, it is still valid under the laws cur-rently in force.

As mentioned above, an employee on strike is not deprived of his employee status. Therefore, he may exercise the rights granted to employed persons. There-fore, an employee retains the right to annual leave, may demand access to his files or raise a claim of discrimination. He may also apply for other benefits arising from internal rules, if he meets the requirements necessary for their obtainment (such as annual bonus).

It should be noted that an employee may exercise the abovementioned rights provided that the strike was organised and is conducted in compliance with the laws in force. Therefore, if the strike is illegal, the period of strike is not counted as a period of employment. In such case an employee will not acquire the entitle-ment to an annual leave or to social insurance benefits for that period238.

237 A judgment of the Supreme Court of 25.7.1990, II PRN 5/90, OSNCP 1991, No. 3, item 34. 238 M. Kurzynoga, Prawo pracownika do wynagrodzenia i innych świadczeń w zakładzie pracy

objętym strajkiem [The right of an employee to remuneration and other benefits in the case of strike], [in:] W. Sanetra (ed.), Wynagrodzenie za pracę w warunkach społecznej gospodarki rynkowej [Re-muneration for work in the social market economy], Warsaw 2009, p. 281–296.

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However, an employee on strike does not retain the right to remuneration. It is a consequence of the nature of strike which means refraining from work while under Art. 80 of the Labour Code the remuneration is payable for the work done. For the time of non-performance of work an employee retains the right to remuneration only where the labour laws so provide. No entitlement to the re-muneration during a strike is confirmed explicitly by Art. 23 (1) of the Act on resolution of collective disputes. It does not mean that an employee will not ob-tain certain benefits. A common practice is organisation by the trade unions of a so-called strike fund. It is used to pay allowances to the persons on strike to compensate, at least in part, for the earnings lost as a result of a strike.

Retention of an employee status by the persons on strike does not only mean maintenance of entitlements granted under labour laws. An employee who does not perform work is still obligated to loyalty to the employer and to care about the employer’s interests. This means an obligation not to harm reputation of the employer, the prohibition to undertake competitive activity or the obligation to respond to illegal activity which poses risk of damage to the employer (for exam-ple theft or damaging property at the work establishment).

6.7. Rules for ending a strike and the principleof preservation of social peace

A strike may end, first, when the persons on strike waive their demands and return to work, second, the employees on strike may end it when all their de-mands are met (or are promised). And finally, the employer and the employees may reach a compromise under which the employer undertakes to satisfy some of the demands put forward during the strike if the strike is ended. In the latter two cases the rules for ending a strike are often regulated in an agreement con-cluded between the employer and a trade union.

Certain doubts arise as regards the nature of such agreement, namely whether it is a source of labour law. According to Art. 9 § 1 KP one of the conditions for a collective agreement to be considered a source of labour law is the existence of a provision which clearly provides for the possibility to conclude such agree-ment239. While the possibility to end negotiations or mediation under an agree-ment is explicitly provided for in the Act on resolution of collective disputes, there is no such basis as regards agreements ending the strike. This could lead to a conclusion that such agreements are not normative agreements. Such opin-ion cannot be supported. It is rightly pointed out that the grounds for conclusion of the agreements ending a strike can be found in the provisions of the Act on

239 B. Wagner, Pakiet socjalny [A social package], PiZS 2006, No. 9, p. 5.

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resolution of collective disputes. As noted by J. Wratny: „The statutory grounds for pre-strike agreements are provisions on resolution of collective disputes. De-spite the absence of clear statutory grounds, it is difficult to deny the similar legal status to post-strike agreements, especially given the fact that the constitutional right to collective bargaining between the social partners refers in particular to resolution of collective disputes, without making any distinction between stages of a dispute”240. The argument according to which an agreement ending a strike should be considered a source of labour law is supported also by the pursuit of social peace. If it was accepted that such agreement is not a source of labour law, employees might face certain obstacles in recovering benefits which were direct-ly guaranteed to them. It also appears that it might be easier for the parties to a workplace social dialogue to challenge such agreement. The agreement which ensures a more sustainable regulation of the attained compromise should be con-sidered as promoting the building of a long-term social peace.

It should be kept in mind that an agreement ending a strike will be a source of labour law provided that it governs the rights and obligations of the parties to an employment relationship. Although it is rare, it cannot be excluded that such agreement will only govern the relationship between the parties to a collective dispute (an employer and a trade union)241 – in which case the agreement can-not be considered a source of labour law.

There are no requirements regarding a specific form of an agreement ending the collective dispute therefore it may be concluded in oral form242. Such agree-ment may govern the relations between a trade union and an employer as well as the rights and obligations of employees. In principle, the agreement relates to the issues which were a subject-matter of a collective dispute, however, there is no reason why they should not govern the demands which have not yet been raised by trade unions. Such agreement may also cover certain accidental issues. For example, these may be clauses which serve to guarantee its observance, such as for example the possibility to seek compensation for damage or to establish a contractual penalty243.

240 J. Wratny, Porozumienie zbiorowe – czy dekompozycja prawotwórstwa zakładowego? [A col-lective agreement or a decomposition of workplace law-making?], PiZS 2011, No. 7, p. 5.

241 See: K.W. Baran, Porozumienia zawierane… [Agreements concluded…], passim.242 An opposite opinion was presented by A.M. Świątkowski who argued that „only an agree-

ment signed by the parties in dispute ends the dispute, transforms the collective interests of workers presented by a trade union in a notification of the dispute into individual personal rights which may be pursued by interested workers in the proceedings before a labour court”. A.M. Świątkowski, [in:] J. Wratny, K. Walczak (eds), Zbiorowe prawo pracy. Komentarz [Collective Labour Law. Com-mentary], Warsaw 2010, p. 334.

243 Z. Salwa, Kodeks pracy po nowelizacji. Komentarz [Labour Code after amendment. Com-mentary], Warsaw 1996, p. 322.

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I share the opinion according to which an agreement ending a strike cannot include provisions which treat differently the persons who were on strike and those who did not participate in it. If this was the case, it would be in breach of the principle of equal treatment244.

244 A.M. Świątkowski, Rozwiązywanie… [Resolution…], p. 341.

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Chapter 10. Other industrial actions

M. Wujczyk


A more moderate form of exerting pressure on the employer is a so-called non-strike industrial action (niestrajkowa akcja protestacyjna). Such industri-al action is referred to in Art. 25 of the Act on resolution of collective disputes. The mentioned provision lays down a number of requirements for a legal indus-trial action.

First, such action may be initiated only upon termination of collective bar-gaining. For as long as a discrepancy report ending the collective bargaining is not signed, no industrial action is allowed. An industrial action may be under-taken even before the formal commencement of mediation or be conducted in parallel to an ongoing strike. There are no legal objections for an industrial action to be conducted in the course of arbitration proceedings. However, the employees should be urged to refrain from such actions at this stage of a collective dispute – undoubtedly this will foster amicable procedure before an arbitration panel.

Another precondition for such industrial action is a requirement that the action cannot pose risk to human life or health. This means that any activities which might result for example in threat to life of the protesters or bystanders are prohibited1.

A lawful industrial action cannot result in interruption of work. There-fore there are two possibilities. The first one is to organise the action during work but without taking the employees away from work. The second one is to organise the action outside the working hours.

And the last condition for an industrial action to be lawful is compliance by the protesters with the applicable legal order. The term „legal order” was not de-fined. It should be assumed that it refers to compliance with any laws, both la-bour laws and provisions of other branches of law. An industrial action will be in breach of a legal order also where it violates the so-called internal (in-compa-

1 B. Cudowski, Pozastrajkowe… [Non-strike…], p. 173–178.

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ny) sources of labour law or even where it violates the procedures issued by the employer.

In the light of the above, a so-called work to rule (strajk włoski) should be considered an unacceptable industrial action. It is a form of protest where workers perform their work very slowly by intentionally decreasing the labour productivity.

The laws do not provide for any formal activities which should precede an in-dustrial action. In particular, such action does not have to be preceded by a ref-erendum; also there is no requirement to give to the employer an advance notice of such action.

An industrial (protest) action is a measure for resolution of a collective dis-pute which may be used by a larger group of employed persons as compared with a strike. According to Art. 25 (1) in fine, the right to undertake an industri-al action was granted also to the employees who do not have the right to strike. This applies in particular to the employees listed in Art. 19 (3) of the Act on res-olution of collective disputes, i.e. employees employed in the public authorities, central and local government administration, courts and prosecution service. It should also be assumed that a non-strike industrial action may be undertaken by persons employed in the work positions, on installations and facilities where such stoppage of work would pose risk to human life or health or would jeopard-ise the state security (Art. 19 (1) of the Act on resolution of collective disputes).

It became quite controversial whether the non-strike industrial actions can be carried out by the officers of Police, Prison Services, Border Guards or the Na-tional Fire Services. According to opinions presented in the literature it is fully acceptable2 and such action to be legal must be organised by a trade union op-erating within a framework of the service concerned3. I support the latter opin-ion. There is no formal prohibition to undertaking a non-strike industrial action by persons employed in militarised forces; the officers should also be given the opportunity to manifest their opinions and to exert pressure on the employer, in particular considering the fact that they are deprived of the right to strike. At the same time a non-strike industrial action is an element of a collective dispute and it cannot be accepted that employees enjoy full freedom to initiate it (see further deliberations on this subject).

It is reasonable to support an opinion presented by K.W. Baran, according to which the right to organise an industrial action is not granted to the vocational groups (militarized structures) in which formation of trade unions is prohibited4

2 J. Żołyński, Strajk… [Strike…], p. 330.3 K.W. Baran, Zbiorowe prawo pracy. Zarys… [Collective Labour Law. An outline…], p. 434.4 Ibidem.


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(Polish Armed Forces, the Internal Security Agency, the Intelligence Agency, the Central Anti-Corruption Bureau). This standpoint takes account of the fact that the non-strike industrial actions may be conducted only within the framework of a collective dispute that is only within the framework of a dispute initiated by trade unions.

Provisions of the Act on resolution of labour disputes granted the right to un-dertake non-strike industrial actions also to farmers, however, the form of the protest should be agreed upon by the farmers’ trade unions.

A question arises who is actually entitled to organise an industrial action: the employees or only a trade union initiating and conducting the strike. There is an opinion presented in the jurisprudence according to which employees themselves are entitled to organise a non-strike industrial action and this does not need le-gitimisation by the organisers of a collective dispute5. This is derived from the fact that laws explicitly reserve that a strike may be organised only by a trade un-ion. According to the standpoint presented above, the absence of such limitation in Art. 25 of the Act on resolution of collective disputes leads, by a contrario ar-gumentation, to a conclusion that the organiser of an industrial action may be employees themselves6. Even if, according to the above standpoint, it is easier for the employees to exert pressure on the employer (and it may therefore speed up the resolution of the ongoing dispute and achievement of social peace), still it cannot be accepted. A collective dispute as a process resulting by its nature from a conflict between the employer and the employees is regulated by the legislature, also as regards the procedure. One of such limitations is identification of a party entitled to commence a collective dispute. As mentioned before, the Polish regu-lations currently in force which identify the entities entitled to conduct a strike (a collective dispute) are too narrow. Still it cannot justify full freedom. This could lead to conflicts among the employees themselves and to creation of several cen-tres of protest. Thus it must be concluded that de lege lata an industrial action should be initiated by organisers of a collective dispute.

The form of an industrial action is left to the discretion of a trade union. Most often such actions take a form of distribution of leaflets, picketing, hanging flags, mass sending of letters. As noted above, the actions undertaken under Art. 25 of the Act on resolution of collective disputes must meet certain requirements. One of them is an obligation to comply with legal order. For that reason, certain forms of industrial actions such as picketing or hanging flags may require consent of an employer. This will be the case where the actions are supposed to take place at the employer’s premises. It is rightly pointed out that such requirement does not

5 J. Żołyński, Strajk… [Strike…], p. 330.6 Ibidem, p. 329.

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apply to strikes organised in a place made available to a trade union organisa-tion7. It may also be necessary to obtain consent of public authorities in a situ-ation where an industrial action took a form of an assembly within the meaning of the Act on assemblies (prawo o zgromadzeniach).

It is also possible to identify the activities which by their nature should be treated under Art. 25 of the Act on resolution of collective disputes as illegal in-dustrial actions. These include: occupation of central and local government ad-ministration bodies, blocking the premises of the work establishment or disobe-dience campaigns which consist in refraining from performing necessary work or specific duties. Also a situation where employees collectively take a leave on demand cannot be considered an industrial action8.

7 J. Żołyński, Strajk… [Strike…], p. 336.8 In the literature it was pointed out that this constitutes abuse of rights within the meaning of

Art. 8 KP which entitles an employer to refuse consent for the leave; see: K. Serafin, Urlop na żądanie a pracownicze formy protestu [Leave on demand and forms of workers’ protest], [in:] Z. Góral (ed.), Z zagadnień współczesnego prawa pracy. Księga jubileuszowa Profesora Henryka Lewandowskiego [The contemporary labour law. An anniversary book of professor Henryk Lewandowski], Warsaw 2009, p. 215–216.


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Chapter 11. Lockout

M. Wujczyk

A lockout is a measure available to an employer the purpose of which is to force employees to certain behaviour or acceptance of terms and conditions of employment proposed by the employer. A lockout may take different forms. Typ-ically it is either a refusal to provide work to the employees or temporary depriva-tion of work of the employees who perform it1. Consequently, a lockout may lead to a permanent termination or only a suspension of an employment relationship. For that reason a lockout may be either offensive or defensive2. The former initi-ates a collective dispute and often precedes a planned collective action of employ-ees. The latter, the defensive lockout, is a collective action of the employer under-taken in response to a strike or to other collective action of employees.

Polish laws do not provide for the employer’s right to use lockout as a form of settlement of collective disputes3. It seems that it does not promote building the social peace. The lack on the employer’s part of the means for exerting pressure on the employees puts the employer in a difficult negotiation position. It should be noted that the employer has no possibility to stop the persons on strike by means of an application for suspension or halting a strike. As rightly pointed out, „if it was possible to prohibit a strike under Art. 7301 and 755 § KPC, the employer could block practically any strike and this violates the essence of the right to strike and is therefore unacceptable in accordance with Art. 31 (3) of the

1 A.M. Świątkowski, Lokaut (studium stosunków przemysłowych) [Lockout (a study of indus-trtial relations)], Studia z zakresu prawa pracy i polityki społecznej 1996, p. 61; R. Birk, Industrial Conflict: The law of Strikes and Lock-outs, [in:] R. Blainpan (ed.), Comparative Labour Law and Industrial Relations, Deventer 1985, p. 411 ff.

2 W. Masewicz, Lokaut jako pojęcie i instytucja prawna [Lockout as a concept and legal construct], PiZS 1992, No. 12, p. 20; A.M. Świątkowski, Rozwiązywanie… [Resolution…], p. 332 ff.; A. Świątkowski, Swoboda podejmowania akcji zbiorowych a prawa obywatelskie i socjalne regulowane prawem pracy [A freedom to take collective action and civil and social rights governed by labour law], Studia z zakresu prawa pracy i polityki społecznej 1995, p. 142–170.

3 B. Cudowski, Model… [A model…], p. 251–252.

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Constitution of the Republic of Poland”4. This means that the currently applica-ble procedure for settlement of collective disputes does not ensure balance as re-gards measures provided to the parties to a collective dispute.

In the context of the analysed concept of social peace it seems appropriate to introduce lockout in the Polish laws. However, I think that the amendment of laws in this regard requires a great deal of caution. In my opinion it is reasonable to provide for a possibility of defensive lockout in the situations where a strike prolongs and there is no possibility to reach an agreement in the course of the on-going negotiations. On the other hand, it appears that if an employer was granted the right to organise an offensive lockout or even a full freedom to lockout, this would not foster achievement of social peace.

4 M. Kurzynoga, Prawo pracodawcy do wystąpienia z powództwem o ustalenie nielegalności strajku i wnioskiem o zabezpieczenie roszczenia w drodze zakazu zorganizowania strajku [The right of an employer to bring an action for declaration of illegality of a strike and to apply for an injunctive relief prohibiting the strike], PiZS 2014, No. 5, p. 22.

Chapter 11. Lockout

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Chapter 12. Liability for strike and other industrial actions

J. Czerniak-Swędzioł

§ 1.General remarks

As regards liability for strike and other industrial actions, it should first be ex-plained that the essence of a strike1 is that workers refrain from working without readiness to perform work, while all protests undertaken by workers’ collectivity without interrupting work or outside their working hours have a status of other industrial action2. Such interpretation is based on the provisions of the Constitu-tion of the Republic of Poland3 (Art. 59 (3)) and provisions of the collective dis-putes act (Art. 19 and 25 – 26). Therefore, trade unions may organise not only strikes but also other forms of protest within the statutory limits. Pursuant to Art. 25 (1) of the collective disputes act rights and interests which constitute a legal subject-matter of a collective dispute may be protected by industrial action other than strike provided that they are in compliance with applicable laws. Contrary to some opinions presented in legal writings4, workers may not organise indus-trial actions alone, without a trade union. Such actions, if they are collective, are a form of resolution of a collective dispute in which collective rights and interests of workers must also be represented by trade unions5. Such actions cannot pose

1 K.W. Baran, Inne niż strajk akcje protestacyjne w systemie polskiego prawa pracy [Indus-trial actions other than strike in the Polish labour law], [in:] A. Sobczyk (ed.), Stosunki zatrudnienia w dwudziestoleciu społecznej gospodarki rynkowej. Księga pamiątkowa z okazji 40-lecia pracy nau-kowej Profesor Barbary Wagner [Employment relations in two decades of the social economy. A memo-rial book for the 40th anniversary of academic work of professor Barbara Wagner], Warsaw 2010, p. 121 ff.

2 T. Zieliński, Strajk. Aspekty polityczno – prawne [Strike – political and legal aspects], PiP 1981, No. 4, p. 5; B. Cudowski, Spory… [Collective…], p. 120 ff.

3 L. Florek, Konstytucyjne aspekty działalności związkowych [Constitutional aspects of trade union activity], Przegląd Sejmowy 2001, No. 6, p. 16 ff.

4 A.M. Świątkowski, Ustawa o rozwiązywaniu sporów zbiorowych [Act on resolution of collective disputes], [in:] J. Wratny (ed.), Zbiorowe prawo pracy… [Collective Labour Law…], p. 431.

5 K. Serafin, Urlop na żądanie… [Leave on demand…], p. 211.

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risk to human life or health. They cannot cause interruption of work. Such right may be exercised also by the workers who do not have the right to strike. The ac-tions in question may be organised instead of a strike but they may also precede a strike or may accompany a strike. Other industrial action is a method of resolu-tion of a collective dispute, therefore its initiation must be preceded by notification of a dispute and an attempt to resolve such dispute through bargaining. Unlike in the case of a strike, a legality of such action is not dependent on the previous me-diation. Also, it is not necessary to obtain workers’ consent through a referendum.

The right to other forms of protest is granted also to employees employed in public bodies, central and local government administration, courts and prosecu-tor’s office as well as officers of police and other similar services who enjoy the right of association in trade unions6. However, according to the provisions relat-ing to those groups of employees, they can organise such actions provided that they do not interfere with their regular work. Therefore, such actions cannot in fact go beyond a manifestation of opinions and demands7. The right to take in-dustrial actions is not granted to officers of militarised structures who do not en-joy the right of association in trade unions (such as officers of the Armed Forces of the Republic of Poland, the Internal Security Agency, the Intelligence Agency, the Central Anti-Corruption Bureau). The industrial actions other than strike which do not violate legal order include manifestations, marches, mass meetings and protest meetings which are in compliance with administrative provisions governing assemblies, as well as peaceful picketing, distribution of leaflets and wearing badges8. Actions which should be considered contrary to applicable laws are those which violate the right of ownership of the employer, which consist for example in: hanging flags or posters at the work establishment, marking vehicles which belong to the employer or occupation of premises of the work establish-ment9. The industrial actions which consist in blockade of public roads, railways, border-crossing points or occupation of public buildings and facilities undoubt-edly violate the legal order10. In the literature on the subject there are different views regarding the nature of a so-called go-slow strike, work to rule. Some au-

6 See: Z. Hajn, Zbiorowe… [Collective…], p. 197. 7 B. Cudowski, Pozastrajkowe… [Non-strike…], p. 174 ff.; Idem, Odpowiedzialność prawna

uczestników nielegalnego strajku. Cz. I. [Legal liability of participants in illegal strike. Part I], PiZS 1996, No. 2, p. 48.

8 Z. Hajn, Zbiorowe… [Collective…], p. 197–198. 9 M. Kurzynoga, Okupacja zakładu pracy jako forma protestu związkowego [Occupation

of a work establishment as a form of trade union protest], [in:] Z. Hajn (ed.), Związkowe przedsta-wicielstwo pracowników zakładu pracy [Trade union representation of workers], Warsaw 2012, p. 363 ff.

10 W. Kulesza, Demonstracja. Blokada. Strajk. Granice wolności zgromadzeń i strajku w polskim prawie karnym na tle prawa niemieckiego [Demonstration. Blockade. Strike. The limits of the freedom of assembly and strike in the Polish criminal law versus German law], Łódź 1991, p. 115 ff.


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thors include them in the category of strikes, while others consider them other industrial actions. Classification of such actions should be made on the basis of an assessment whether the workers in fact ceased to perform their basic duties, taking into account specific circumstances of the case11. Any actions which con-sist in cessation of work through coordinated sick leaves and leaves on demand which are designed to exert pressure on the employer in order to comply with the collective demands of workers cannot be classified as other industrial action. They should be considered strikes (absenteeism strikes)12, and if they are not pre-ceded by statutory notification of a dispute, by bargaining and mediation, they should be considered illegal. Classification of such action as a strike depends on whether it was an agreed and organised collective refraining from working by the employees designed to exert pressure on the employer13.

According to Art. 26 (1) of the collective disputes act, a person who, in con-nection with the position held or a function performed, hinders initiation of a collective dispute or disturbs lawful collective dispute or fails to comply with the obligations laid down in this act shall be held liable. It is therefore necessary to find and indicate some exemplary situations. Unlawful acts of the employer which prevent initiation and continuance of a collective dispute include, among others: hindering, interfering with or preventing contacts between trade union activists and workers regarding a dispute, failure to provide information to trade unions which is necessary to perform trade union activities in connection with the dispute, postponement or interruption of negotiation meetings without due cause. On the other hand, unlawful acts on the part of a trade union may be, simi-larly as with the employer: refusal to join the collective bargaining and mediation or refusal to sign a discrepancy report from the collective bargaining or media-tion14. Non-compliance with the statutory obligation applies to both parties to a collective dispute and may have a broad range15. As regards trade unions, it may involve: initiation of a collective dispute without notification of demands to the employer, inclusion in a strike referendum of a question which is not a sub-ject-matter of a dispute, commencement of a strike without a 5-days’ advance notification to the employer or initiation of an illegal warning strike or illegal

11 M. Kurzynoga, Okupacja... [Occupation…], p. 363. 12 K.W. Baran, Komentarz do ustaw o związkach zawodowych, o organizacjach pracodawców,

o rozwiązywaniu sporów zbiorowych, o zwolnieniach grupowych [Commentary to the act on trade unions, on employers’ organisations, on resolution of collective disputes and on collective redundancies], Gdańsk 2004, p. 269.

13 Z. Hajn, Zbiorowe… [Collective…], p. 198.14 J. Żołyński, Ustawa o rozwiązywaniu... [Act on resolution...], p. 57 and following. 15 See: W. Majewicz, Czyny karalne związane ze stosunkiem pracy: odpowiedzialność pracodawcy

i pracownika [Criminal offences relating to employment: employer’s and employee’s liability], Warsaw 1995, p. 42.

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solidarity strike. On the other hand, as regards an employer, non-compliance with statutory obligations may consist in failure to notify a competent regional labour inspector of a collective dispute or not allowing the workers who are not on strike to work. One of possible forms of interference with a collective dispute is taking actions which disturb free and genuine negotiations between the parties and taking such actions which constitute unlawful interference with the process of drafting an agreement16. Therefore, Art. 26 (1) of the collective disputes act governs a so-called delictum proprium17, which differentiates between „holding a position” and „performing a function”. Therefore, the persons covered by this regulation include persons representing an employer as well as workplace trade union organisations. These may be persons in managerial or independent18 po-sitions in the organisational structure of the establishment concerned (such as plant manager or liquidator) or in the employers’ organisation, and sometimes even representatives of public authorities and trade unionists.

Leading a strike or an industrial action means actual authority to decide on the course of the strike or action. However, the statutory expression „a person leading a strike” is limited to include only the persons who manage the entire strike and not its particular stages. The examples of actions which infringe the provisions of the collective disputes act include19: commencement and leading a strike without previously exhausting the amicable settlement procedures or leading other industrial action which poses risk to human life or health. There-fore, the statutory provisions may be infringed in the course of organisation of a strike or industrial action in four key dimensions20:– material (Art. 1, 4 (1), 10, 17 (1), 19 (1), 25 (1)),– personal (Art. 2, 18, 19 (2) and (3)),– temporal (Art. 4 (2), 7, 12, 22),– functional (Art. 17 (2) and (3), 20, 21).

The above enumeration is only exemplary since indication of all possible in-fringements of the act, because of diversity and dynamics of strikes and other in-dustrial actions, seems impossible.

16 L. Bucka, Prawnokarna ochrona rozwiązywania sporów zbiorowych [Protection of resolution of collective disputes under criminal law], Prok. i Pr. 2011, No. 2, p. 80.

17 See: J. Zientek, Odpowiedzialność karna za nielegalne formy protestu [Criminal liability for il-legal forms of protest], Prok. i Pr. 2001, No. 7–8, p. 145 ff.; L. Wilk, Kilka uwag o kryminalizacji w sferze zbiorowego prawa pracy [Notes on criminal liability under collective labour laws], PS 1998, No. 3, p. 56.

18 See: M. Bojarski, W. Radecki, Pozakodeksowe przepisy karne z komentarzem [Non-code crimi-nal laws with a commentary], Warsaw 1992, p. 356.

19 K.W. Baran (ed.), Zbiorowe prawo pracy. Komentarz [Collective Labour Law. Commentary], Warsaw 2010, p. 473.

20 K.W. Baran (ed.), Zbiorowe prawo pracy [Collective Labour Law], Warsaw 2016, p. 475.


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As regards the analysed regulation, certain doubts arise as to the interpreta-tion of the expression „contrary to the provisions of the act”. The opinions pre-sented in the legal writings are diverse. A literal interpretation of this provision implies that it refers only to the collective disputes act and infringement of its provisions. However, taking into account the axiological dimension, it seems rea-sonable to argue that it refers to any act governing strikes or other industrial ac-tions. In the state under the rule of law the actors in industrial relations should, within the collective disputes, respect any and all statutory provisions regardless of in which act they were introduced21.

§ 2. Rules of liability

The Act on resolution of collective disputes grants immunity from criminal, civil and workers liability exclusively to organisers of a legal strike. Therefore, the organisers of a strike which is illegal within the meaning of the act may be held liable. The mentioned act does not regulate at all the liability of other participants in a strike and of workers who did not participate in the strike. The liability of this group of persons will result from other legal acts, in particular from provisions of the Civil Code in the case of liability for damages, provisions of the Criminal Code in the case of criminal liability and provisions of Labour Code in the case of employee’s liability arising from employment relationship. In determining the liability for participation in a strike it is necessary to differentiate between liabil-ity of organisers of a strike and liability of ordinary (passive) participants (work-ers). As regards the latter, their liability is regulated in several different acts and can take different forms. However, it should be borne in mind that the initiative to impose sanctions on these persons belongs only to an employer, which means that in some situations, taking into account the nature and scope of the strike and to maintain the social peace the employer may, to a certain extent, decide not to impose the sanctions22.

Persons responsible for leading a strike organised contrary to the provisions of the collective disputes act are all employees, both members of the governing bodies of the strike acting on behalf of a trade union and members of informal strike organisations appointed by the employees. They do not have to be mem-bers of statutory bodies of a trade union since liability rests with the persons who actually lead the collective dispute23. Leading a strike means that actions of par-

21 K.W. Baran, Z problematyki odpowiedzialności cywilnej… [Civil liability…], p. 503–514.22 J. Żołyński, Ustawa o rozwiązywaniu… [Act o resolution…], p.147 and following.23 W. Masewicz, Zatarg… [A collective…], p. 193 ff.

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ticipants in a strike are in compliance with the objectives and tasks of those who set out such objectives and tasks. Identification of leaders of a strike in terms of criminal liability is simple if there is a single leader, however, it becomes compli-cated in a situation where there is a multiple leadership24. Therefore, if a leader of a strike is a group of persons, then each of such persons is liable individually, depending on the degree of fault.

§ 3. Criminal liability

An intrinsic characteristic of every collective industrial action taken in indus-trial relations is damage which occurs as a result of use of economic or organisa-tional pressure by the workers’ collectivity against the employer/s, entities coop-erating with the employers or even25 third parties26.

The collective disputes act introduces a criminal liability regime (restriction of liberty or a fine) against persons who, in connection with the position held or a function performed, hinder initiation of a collective dispute or disturb law-ful collective dispute or fail to comply with the obligations laid down in this act (Art. 26 (1) (1) and (2) of the collective disputes act). The criminal liability ap-plies only to natural persons. The Polish criminal law does not provide for crimi-nal liability of undertakings, companies, associations or trade unions. It should be considered that the said provision applies both to company-level collective dis-putes and to sectoral collective disputes27. However, it must be noted that such liability applies to both parties to a collective dispute, which means the persons on the part of a trade union which initiates the dispute and persons on the part of the employer28. Therefore, in personal terms, the criminal liability applies to persons leading a strike or industrial action (for example members of the strike committee). This means that not only trade unionists but also employees who are not members of a trade union organising a strike (or are members of another

24 J. Żołyński, Ustawa o rozwiązywaniu… [Act o resolution…], p. 150–151.25 W. Masewicz, Zatarg… [A collective…], p. 154. 26 K.W. Baran, Z problematyki odpowiedzialności cywilnej za nielegalny strajk lub inną akcję

protestacyjną [Civil liability for illegal strike or other industrial action], [in:] M.B. Rycak, J. Wratny (eds), Prawo pracy w świetle procesów integracji europejskiej. Księga jubileuszowa Profesor Marii Matey-Tyrowicz [Labour law in the context of European integration. A memorial book of professor Maria Matey-Tyrowicz], Warsaw 2011, p. 503–514.

27 See: B. Cudowski, P. Hofmański, Odpowiedzialność karna według ustawy o rozwiązywaniu sporów zbiorowych [Criminal liability according to an Act on resolution of collective disputes], [in:] B.M. Ćwiertniak (ed.), Prawo pracy, ubezpieczenia społeczne, polityka społeczna. Wybrane za-gadnienia [Labour law, social security, social policy. Selected problems], Opole 1998, p. 318 ff.

28 J. Żołyński, Ustawa o rozwiązywaniu… [The Act on resolution...], p. 152.

§ 3. Criminal liability

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trade union which did not participate in the strike) and persons who are not em-ployees (persons from outside the employing establishment) may be held crimi-nally liable. The criminal liability does not apply to workers who are only passive participants in a strike. On the other hand, regardless of whether a strike is legal or not, all the participants in a strike who violate the criminal laws (for example destroy or seize employer’s property, restrict the freedom of other persons, as-sault other persons, etc.) are subject to liability. Trade unions may lay down the rules of conduct of the industrial action but only in such a manner as to ensure that such action does not violate the laws in force29.

In material terms, all organisational actions which infringe the provisions of the collective disputes act are penalised. The infringements may include: com-mencement of a strike without notification of demands and without exhaust-ing the amicable procedures, commencement of a strike without a referendum, commencement of a strike not in compliance with the results of the referendum, commencement of a strike in the work positions, on installations and equipment where stoppage of work poses risk to human life or health or jeopardises the state security (Art. 19 (1) of the collective disputes act), initiation of strike in a place where it is prohibited (Art. 19 (2) and (3) of the collective disputes act).

Taking actions aimed at preparation of an illegal strike is not penalised since the Act on resolution of collective disputes does not provide for any such sanc-tions30. According to the provisions of the Criminal Code a preparation to com-mit an offence (and an illegal strike is an offence) is punishable only where ap-plicable laws so provide. On the other hand, an attempt to commit an offence is in principle, under the Criminal Code (Art. 13–15 KK), punishable by the same penalty as the committed crime (Art. 14 § 1 KK). Therefore, an attempt to com-mence an illegal strike may be punishable (unless it was voluntarily abandoned or prevented (Art. 15§1 KK)).

As regards liability for organising an illegal strike and participation in an ille-gal strike, the situation is different. According to Art. 303 and 304 of the Crimi-nal Code (KK), if there is a reasonable suspicion that a crime has been committed as a result of a strike, the employer should inform law enforcement authorities. However, it should be explicitly stated that if the employer fails to inform, he should not be liable to any criminal sanctions. In principle, an obligation to in-form the law enforcement authorities, on pain of a criminal liability, applies to serious offences listed in Art. 240 KK that are offences resulting from Art. 118 (genocide), Art. 127 (attempt against independence, internal security or territo-

29 A judgment of the Polish Supreme Court of 17.5.2000, IV KKN 69/00, OSNKW 2000, No. 7–8, item 75.

30 J. Żołyński, Ustawa o rozwiązywaniu… [Act on resolution…], p. 151.

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rial unity), Art. 130 (system of defence, security and economic well-being of the Republic of Poland), Art. 134 (uninterrupted functioning and constitutional or-der of the Republic of Poland and life and health of the President), Art. 140 (sys-tem of defence), Art. 148 (homicide), Art. 163 (exposing life and health of many people or property of large size to risk), Art. 166 (safety of ships and aircraft) and Art. 252 (taking and holding hostage) of the Criminal Code (KK).

In practice, it may be difficult to hold organisers of strike criminally liable be-cause very often a respective investigation is closed and an indictment is not filed with a court of (pursuant to Art. 17 § 1 (2) KK) on such basis that an act does not constitute an offence. If, however, a prosecutor’s office discontinues the in-vestigation two times (first discontinuance may be challenged by a complaint to a court), then in the case of the second decision on discontinuance of the inves-tigation (which is not open to challenge), an employer may, in accordance with a procedure laid down in Art. 55 § 1 and 2 KPK, bring a private indictment which in the criminal law is called a „subsidiary indictment”.

§ 4. Civil liability

As regards financial liability for any industrial actions in the labour and em-ployment relations, in the Polish legal system there exists a specific diffusion of liability regimes. Apart from the labour law regime governed by the provisions of the Labour Code, there are also civil law regulations31.

As regards civil liability, Art. 26 (3) of the collective disputes act does not dif-ferentiate between a strike and other industrial action. By a reference to the Civil Code it implements in the labour law system a lawful excuse defence which re-leases the organiser from liability for damage caused as a result of strike or other industrial action which was in compliance with the provisions of the act. There-fore, organisers of solidarity and warning strike (as well as of other industrial ac-tion) which was held contrary to the provisions of the collective disputes act, shall bear civil liability for the damages caused by such action. They shall be liable both for the damage caused to the employer and to third parties. It is a liability under Art. 415 et seq. of the Civil Code which means liability in tort. In the event where a strike is organised by governing bodies of a trade union (workplace trade union organisation), the liability may also be based on Art. 416 of the Civil Code (KC).

31 A. Chabowska, Odpowiedzialność pracownika za zorganizowanie i udział w nielegalnym strajku [Worker’s liability for organisation and participation in an illegal strike], [in:] A. Nowak (ed.), Z problematyki prawa pracy i polityki społecznej [Labour law and social policy issues], vol. 11, Kato-wice 1994, p. 39 ff.


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The mentioned provision governs the liability of legal persons, therefore it must be determined whether a workplace trade union organisation organising a strike is a legal person. Based on this, an action may be brought either against a whole trade union or against a workplace trade union organisation which is a part of the structure of the trade union concerned. Moreover, a joint action, under a joint and several liability regime, may be brought against all (or some of) trade union organisations which proclaimed and organised a strike32. Such interpretation is justified and in systemic terms it falls within a broader category of cases in which civil liability is excluded33. This means that a pre-condition for exclusion of civil liability is that all statutory conditions and procedures laying down the organisa-tion of a strike or other industrial action must be respected. In the event of any breach of applicable normative regulations the civil liability becomes effective.

A condition sine qua non for a civil liability of organisers and participants in a strike is to prove that: the strike or other industrial action was unlawful, these actions caused damage to the employer and there exists an ordinary causal link between the damage and the strike or protest as an act infringing law. In the civ-il law jurisprudence the concept of unlawfulness has a very broad meaning34. It is accepted that it constitutes not only infringement of the rules of conduct prescribed by legal norms but also violation of the rules of social coexistence. In particular, a situation is considered unlawful not only where an offender did not comply with an order or acted contrary to a prohibition, but also where his behaviour does not infringe a legal norm but violates non-normative rules. Such interpretation of Art. 415 KC cannot apply to liability for damages specified on the basis of a reference from Art. 26 (3) of the collective disputes act. This provi-sion refers, expressis verbis, only to infringement of statutory provisions35. Con-sequently, an extensive interpretation of the conditions of liability for damages caused by strike or other industrial action is not acceptable. A civil liability for strike or other industrial actions applies only to the behaviour of protesters who directly violate statutory provisions. An illegal strike or industrial action gives rise to liability in tort of the organiser since it constitutes tort under Art. 415 of the Civil Code. Under the Polish legislative system an organiser may also be sub-ject to contractual liability36.

Claims in respect of a strike or industrial action which was initiated con-trary to law may be pursued by any harmed party. This applies not only to the

32 J. Żołyński, Ustawa o rozwiązywaniu... [Act on resolution...], p. 159.33 K.W. Baran, Z problematyki odpowiedzialności… [Civil…], p. 503–514.34 See: W. Dubis, [in:] E. Gniewek (ed.), Kodeks Cywilny. Komentarz [Civil Code. Commentary],

Warsaw 2008, p. 696 ff. 35 K.W. Baran, Z problematyki odpowiedzialności… [Civil…], p. 503–514.36 Ibidem.

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employer(s) against whom the strike or industrial action is directly targeted but also to third parties harmed as a result or on the occasion of such strike or ac-tion. Consideration should therefore be given to a relation between Art. 415 KC which provides for a general liability in tort and Art. 26 (3) of the collective dis-putes act which limits the liability for a strike or industrial action to organisers only. It seems appropriate to accept that Art. 26 (3) of the collective disputes act as a referring provision, indicates only the sources of liability in relation to one cat-egory of actors37. The provisions of Art. 26 (3) of the collective disputes act do not specify how the provisions of civil law should apply in the case of liability for a strike or industrial action. The mentioned provision is not comprehensive and regulates, in a fragmented manner, in personal terms, the civil liability for a strike or industrial action organised contrary to the provisions of the act which means that not only organisers but also other persons may de lege lata be held liable.

An organiser of an illegal strike or industrial action may be both a legal per-son (such as a trade union) or a natural person, regardless of whether such person belongs to a trade union or even whether it is an employee or not. In this respect civil liability may be imposed also on persons who are not employees (contrac-tors, self-employed, volunteers) and persons who are not at all employed by the employer (such as former employees) who organised the illegal strike or protest. An organiser within the meaning of Art. 26 (3) of the collective disputes act is someone who undertakes preparatory activities and sets out the rules of a strike or an industrial action. Although under the literal wording of Art. 26 (3) the civ-il liability is limited to the stage of the actual implementation phase, the earlier stages of a strike or industrial action will also be subject to liability, however, un-der general rules laid down in the Civil Code.

In practice it may be difficult to identify and distinguish an organiser, who is usually an employee, from ordinary participants in a strike38. The opinions of jurisprudence in this regard are varied. Some authors39 argue that application of a limited liability regime, under Art. 115 of the Labour Code (KP), for damages in the employer’s property caused unintentionally by the employees on strike is not possible for two reasons: first, because of a clear wording of Art. 26 (3) of the collective disputes act which provides for an application of rules of liability un-der the Civil Code, and second, because of the absence of grounds for applica-

37 Ibidem.38 A judgment of the Polish Supreme Court of 24.9.2013, III PK 90/12, OSNP 2014, No. 12,

item. 167 and a partially critical commentary of M. Kurzynoga. 39 A.M. Świątkowski, Ustawa o rozwiązywaniu sporów zbiorowych [Act on resolution of collective

disputes], [in:] J. Wratny, K. Walczak (eds), Zbiorowe prawo pracy. Komentarz [Collective labour law. Commentary], Warsaw 2009, p. 441, as well as A.M. Świątkowski, M. Wujczyk, Polskie… [Polish…], p. 288–289.


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tion of provisions of the Labour Code in collective labour relations. Therefore, the provisions of the Labour Code which differentiate between the liability for intentional acts (the so-called full liability) and liability for unintentional acts (in which case liability of an employee is limited to a 3-monthly remuneration) will practically not apply since they exclude the application of both Art. 115 KP and Art. 120 KP. An opposite opinion is presented by B. Cudowski 40 according to which if a breach of duties caused damage, an employee may be held financial-ly liable under Art. 114–122 KP. In this regard there are two regimes of liability colliding in the Polish legal system: the civil liability regime and employee liabil-ity regime. In the case of such conflict the provisions of the Labour Code, as lex specialis, should prevail41. K.W. Baran42 believes that an employee who leads an illegal strike and an ordinary participant in such strike may be held liable in ac-cordance with the rules laid down in the Labour Code. Under Art. 122 KP they shall be liable for the damage in full only if such damage was caused intentionally. In practice, it may also be the case where an employee leading an illegal strike or participating in an illegal strike or industrial action breached his duties when he acted with a direct or indirect intent to cause damage43 (for example refused to secure goods which were then destroyed).

In the context of Art. 422 KC, a financial liability for damage caused by a strike or industrial action organised contrary to law shall be borne not only by a perpetrator of the damage but also by an instigator and accessory. According to Art. 441 KC, liability of those persons is joint and several with the perpetrator. It should be noted that a civil liability of the organiser includes liability for both property and non-property loss because the legislation in force does not make any differentiation in this respect. Such interpretation is supported by teleologi-cal arguments since illegal protests of workers very often involve infringement of personal rights of the employer and of persons acting on behalf of the employ-er. If a claim is pursued against an employee who is not an organiser of a strike, the limitation laid down in Art. 115 KP will apply. This conclusion follows from a contrario argumentation in relation to Art. 26 (3) of the collective disputes act. As regards actors other than the organiser, who deliberately cause damage, the principle of full compensation for damage under Art. 361 § 2 KP or Art. 122 KP respectively will apply44.

40 B. Cudowski, Spory… [Collective…], p. 179.41 K.W. Baran, Z problematyki odpowiedzialności… [Civil…], p. 503–514.42 K.W. Baran, Likwidowanie… [Resolution…], p. 166.43 B. Wagner, [in:] B. Wagner (ed.), Kodeks pracy. Komentarz [Labour Code. Commentary],

Gdańsk 2010, p. 633 ff. 44 K.W. Baran, Z problematyki odpowiedzialności… [Civil…], p. 503–514.

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In the event of an illegal strike (industrial action) the provisions of Art. 120 § 1 KP which govern liability of an employer for damage caused by an employ-ee to a third party will not apply45. Therefore, the employees (and organisers of strike) will be directly liable for damage caused to a third party. In other words, a third party claim is addressed directly to an employee (organiser of the strike or participant in the strike) and not to an employer who is not responsible for the damage caused by the strike and does not have to raise any recourse claims against the perpetrator (employee). The situation will be different if during a strike an employee, upon the instruction of a manager of the work establish-ment (employer) or of other person authorised by the employer, performs certain activities which result in damage (for example the employer instructs an employ-ee to secure machinery, equipment and installations so that normal operations of the establishment can be resumed after the strike ends – Art. 21 (1) of the col-lective disputes act – and as a result of it damage is caused to a third party). Ac-cording to J. Żołyński, in such situation Art. 120 KP will apply (the employer is the first to be held liable for damage) because the bond between the employer and the employee was temporarily restored since the latter performed his duties. In such case the employee complies with instructions of the employer.

The civil liability for a strike or an industrial action initiated contrary to law covers also personal injuries46. This means that if illegal workers’ strike resulted in bodily injury, harm to health or death, the organiser will be held liable under Art. 444–448 of the Civil Code (KC). Such liability is not only to an employer who is a natural person and persons acting on behalf of the employer but also to third parties. However, the application of the mentioned civil laws will be only subsidiary in relation to employees who perform work or undertake actions to the employer’s interest during illegal protest, which result in injury or death since they can be classified as an accident at work47.

Personal rights will also be protected in a situation where the protesters threaten the non-financial rights of the employer or of third parties48. In such case the provisions of Art. 23–24 KC will apply. In the labour and employment relations there is a risk of violation of personal freedom (for example by a block-ade of exit from the establishment), personal data (for example publication on

45 A.M. Świątkowski, Ustawa o rozwiązywaniu sporów zbiorowych [Act on resolution of collective disputes], [in:] J. Wratny, K. Walczak (eds), Zbiorowe prawo pracy. Komentarz [Collective labour law. Commentary], Warsaw 2009, p. 441 as well as A.M. Świątkowski, M. Wujczyk, Polskie… [Polish…], p. 288–289.

46 J. Matys, Szkoda na osobie – uwagi na tle art. 444 KC [Personal injury – comments in the context of Art. 444 of the Civil Code], MoP 2004, No. 10, p. 457 ff.

47 K.W. Baran, Z problematyki odpowiedzialności… [Civil…], p. 503–514.48 P. Granecki, Dobra osobiste w prawie polskim – zagadnienia dóbr osobistych osób prawnych

[Personal rights in the Polish law – issues of personal rights of legal persons], PS 2002, No. 5, p. 3 ff.


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posters or in cyberspace of names of employees who refused to participate in a strike), health (such as forcing an employee to start a hunger strike)49, privacy or image50 (for example publication in the means of electronic communication of images or videos of persons opposing the protest)51.

To sum up the deliberations on liability for a strike (industrial action), it should be concluded that the laws in force provide for various liability regimes, starting from liability in tort, contractual liability, and ending with liability aris-ing from employment relationship, which undoubtedly results in unreasonable differentiation52. I support an opinion presented by K.W. Baran, according to which the mentioned Art. 26 (3) of the collective disputes act is destructive as it promotes differentiation of rules of civil liability of actors participating in an il-legal collective action, and if this provision was deleted, this would contribute to uniformity of liability regimes which in the long term would promote respect for legality in labour and employment relations.

§ 5. Employee’s liability arising from employment relationship

The Act on resolution of collective labour disputes does not regulate employ-ees’ liability for infringement of provisions of the act. In this regard appropri-ate provisions of the Civil Code will apply. The employees’ liability is individu-al. According to Art. 23 (1) of the collective disputes act, participation in a legal strike does not constitute misconduct. Therefore – a contrario – participation in an illegal strike constitutes misconduct, and it is misconduct in respect of basic duties. An employer may impose on an employee sanctions prescribed by labour law provided, however, that employee’s fault is proven. It should be noted that the mere fact that an employee participated in an illegal strike does not prejudge the fault of the participant. The Polish Supreme Court held that a company can-not dismiss an employee on grounds of his participation in a strike which ap-peared to be illegal. The respective consequences can be borne solely by organis-ers of such a strike53. Fault cannot be attributed to an employee who participated

49 K.W. Baran, Inne niż strajk… [Industrial actions…], p. 121–130.50 A. Matlak, Cywilnoprawna ochrona wizerunku [Civil-law protection of image], KPP 2004,

No. 2, p. 317 ff. 51 For more examples see: K.W. Baran, Z problematyki odpowiedzialności… [Civil…], p. 503–514.52 Ibidem.53 A judgment of the Polish Supreme Court of 24.7.2012, I PK 12/12, G. Prawna 2012, No. 237,

p. 7.

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in an illegal strike where the employee was unable to assess the illegality of such action. According to a case-law of the Supreme Court54, a chairman of a trade union and at the same time an organiser of a strike should be subject to higher requirements than employees. The former are always aware of the illegal nature of a strike action since they are obligated by law to know the normative rules of conduct of such action55.

In the event of infringement of provisions of the collective disputes act, an employer may impose on an employee the penalties laid down in Art. 118 et seq. KP (liability for breach of order in the workplace). These include a warn-ing or reprimand as well as pecuniary penalty for employee’s absence from work without excuse. The employer may also terminate a contract of employment with such employee upon notice, in which case the grounds for such termination will be for example violation of work discipline by participation in an illegal strike, in-fringement of provisions on working time unauthorised departure from a work-place or damage to employer’s property resulting from the strike. The employer may also terminate a contract of employment under Art. 52 KP (termination without notice through employee’s fault) because of arbitrary suspension of work and participation in the strike or commission of an offence which precludes con-tinuance of employment in the position held. Provisions of Art. 52 § 1 KP may be applied towards passive participants in an illegal strike only where they were fully aware of the unlawfulness of their behaviour and continued the strike de-spite warnings and demands to abandon the strike. Therefore, it will be necessary to establish fault of the employee56. However, the fault should be established on a case-by-case basis since each individual participant in a strike may have differ-ent awarness about legality of the strike.

54 A judgment of the Polish Supreme Court (SN) of 17.2.2005, II PK 217/04, OSNP 2005, No. 18, item 285.

55 K.W. Baran, Zbiorowe… [Collective…], p. 468.56 A judgment of the Polish Supreme Court of 28.3.1992, I PRN 11/92, PS 1993, No. 1, p. 78.

§ 5. Employee’s liability arising from employment relationship

Labour law disputes in Polish legal system

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