Posted on Categories employment contract

Can the place of performance of work agreed in the employment contract be changed through a modification order?

Art. 42 §4 of the Polish Labour Code grants the employer broad authority to modify employees’ working conditions. It permits the employer to assign work to the employee different from that originally agreed. But this possibility is subject to many limitations. The employer thus may assign different work to the employee only when:

  • A legitimate need arises on the part of the employer
  • The period of assignment of different work does not exceed three months within a calendar year
  • Assignment of different work will not reduce the employee’s pay, and
  • The assigned work is suited to the employee’s qualifications.

In the course of applying Art. 42 §4, doubts have arisen whether it is possible on this basis to change the place of performance of the work which the employee and the employer agreed to in the employment contract.

There is an apparent split on this issue in the legal literature. According to the restrictive view, a unilateral instruction by the employer may only change the type of work, and cannot affect other elements of the employment contract, in particular the working location. The more liberal approach admits the possibility of changing terms of employment other than the type of work, under the conditions set forth in Art. 42 §4 of the code, particularly if the change in other terms derives from the change in the type of work. In support of this view, it is argued that a change in the type of work often entails a need to change the place of work. Barring the possibility of a change in location would greatly limit the exercise of the entitlement set forth in Art. 42 §4. This position seems to be have been adopted by the Supreme Court of Poland in its judgment of 16 February 1995 (Case I PRN 122/94).

But there are more arguments for finding that Art. 42 §4 of the Labour Code does not permit a unilateral change in working conditions other than the type of work, even as a consequence of assigning different work to the employee. This interpretation is supported by several arguments. First, Art. 42 §4 is an exception from the general rule prohibiting unilateral modification of employment conditions by the employer through any procedure other than a modifying termination notice. For this reason as well, a narrow interpretation is called for pursuant to the principle exceptiones non sunt extendendae. Second, the drafters of the code imposed a number of conditions on the employer’s unilateral change of the type of work to be performed by the employee. One condition prohibits assigning different work to the employee that does not suit the employee’s qualifications. Such a guarantee is not provided for with respect to a change in the working location. In particular, there is no provision requiring that the new place of work be located within an area enabling the employee to reach work from his or her home within a reasonable time. After all, it cannot be ruled out that a change in the type of work would require the employee to move to a place far away from the place established as part of the employment relationship (perhaps even in another part of the world). In such case, it could be very difficult if not impossible for the employee to comply with the duty to work in a new location. Finally, a change in the working location might require the employee to incur much higher costs, but the regulation in question does not provide for any compensation in this instance. Consequently, it cannot be ruled out that continuing with the employment would lose any economic sense for the employee, if the cost of commuting or temporary change of residence greatly exceeded the employee’s salary.

For these reasons, it should be recognised that under Art. 42 §4 it is only possible to change the type of work to be performed by the employee. If a change in the type of work would also entail a change in the location of the work set forth in the contract, the employer cannot exercise its entitlement under this section of the code. For such a change to occur, it is necessary for the parties to conclude an agreement modifying the employment contract, or for the employer to issue a notice terminating the current terms of employment.

Marcin Wujczyk