Due to the current situation caused by the spread of SARS-CoV-2, entrepreneurs are forced to cut costs. When other measures are insufficient, staff reductions may be necessary. Whether such redundancies take place collectively or individually, the rules on employment contract termination will still apply.
One of the formal requirements for terminating employment contracts is that they need to be presented in writing. Although this requirement applies to both parties, only its violation from the employer’s side is subject to legal consequences. Even a termination notice that is not submitted in writing will be valid (the regulation does not make it invalid), but an employee will be able to effectively appeal against it to the labour court. As a result, the employer may be obliged to continue their employment or to reinstate them, or to pay compensation.
Determining the moment that the termination notice was effectively served is no less important than the way termination is carried out. And it is only from this date onwards that the notice period, and the 21-day period, during which the employee can appeal to the labour court, start.
Since there are no provisions concerning the form of legal actions and declarations of intent in the Labour Code pursuant to Art. 300 thereof, the provisions of the Civil Code apply. In accordance with the definition of written form in Art. 78 § 1 of the Civil Code, signing a document containing the declaration of intent to preserve the proper form is sufficient. In turn, pursuant to Art. 61 § 1 of the Civil Code, submitting the declaration of will to another person should be done in such a way so as to give them an opportunity to read it through. It can then be considered effective.
In practice, termination notices are delivered at the workplace. In such case, there is no doubt that an employee can read it (which is usually confirmed by acknowledgement), so both the notice period and the period for appeal to the labour court will count from the date of the meeting. Currently, however, when an unprecedented number of employees are working remotely in Poland, serving such a notice personally may turn out to be much more difficult. Although the employer can instruct an employee who is working remotely to come to the workplace to deliver the notice at any given time, in the current situation, organising such a meeting may be, on the one hand, impractical or even irresponsible, on the other hand, it may violate public authorities or company policy recommendations. For this reason, it is worth considering other options for serving the termination notice on the employee.
The second most popular way of serving termination notices, used in situations where, for various reasons, personal service of such a notice is not possible, is by registered mail sent to the employee’s home address. This method still keeps the written form. This however, results in uncertainty as to the date of filing. Apart from factors beyond the control of both parties (such as the speed of the postal service), some factors on the employee’s side come into play.
The situation is clear if an employee collects a registered letter. The date on which they collect the letter will correspond to the notice’s delivery date. The same will apply if the employee openly declines to accept delivery. In order for the delivery to become effective, the employee does not actually have to read the notice to terminate. The objective possibility of them having read it will be sufficient.
In this case, the most problematic situation is when registered mail is not picked up, despite the fact that the addressee has been duly notified twice. This may happen, among others, for the following reasons:
- Deliberate action of an employee expecting notice to terminate
- Temporary absence of the employee from their home
- A change in the employee’s residence.
According to the prevailing case law of the Supreme Court, two notifications of a registered letter containing a notice to terminate sent to the correct address (i.e. the last known to the employer – the employee is responsible for the consequences of not informing the employer about a change of address) create the presumption that the employee has read it. To rebut this presumption, the employee must prove that he/she did not have the opportunity to read the notice.
In turn, the alleged date of service of the notice will depend on the circumstances of each individual case. The latest possible date of its alleged delivery will be the last day of the deadline for the collection of the letter indicated in the second notification.
The aforementioned rules concerning the presumption of service have undergone significant modification during the COVID-19 epidemic. This is regulated by Art. 98 of the so-called Shield 2.0 (i.e. the Act of 16 April 2020 on special support programmes in connection with the spread of the SARS-CoV-2 virus), which came into force on 18 April 2020. It states that any uncollected letters which have to be acknowledged with a receipt by the postal operator, whose deadline for the receipt is specified in the notification and falls in the period of an epidemic, cannot be considered to have been delivered within 14 days after their lifting. There are exceptions to this provision, but they do not cover any declarations of intent such as contract termination. This means that a letter of termination which is not received by the employee will not be considered to have been delivered after the deadline for its receipt indicated in the notice.
Due to the shortcomings of both delivery methods described above, the question arises as to whether in the current situation there is no other possibility for an effective delivery method. Electronic communication could be another one. However, there is no doubt that an ordinary e-mail or text message will not meet the standards of written form. The Supreme Court has also decided that these standards will not be met by a notice sent by fax, or scans or photographs of the signed notice document sent as e-mail attachments.
However, it is worth referring, on the basis of Art. 300 of the Labour Code, to Art. 781 § 2 of the Civil Code, which equates declarations of will made electronically with those made in writing. According to the legal definition, electronic form is preserved when the declaration of will is made electronically and bears a qualified electronic signature. This means that it will be lawful to send the termination notice to the employee, e.g. by e-mail, as long as the e-mail is accompanied by a qualified electronic signature by the employer (or a duly authorised person).
When determining the moment of the termination notice’s delivery in electronic form, reference should be made to Art. 61 § 2 of the Civil Code, according to which a declaration of will expressed electronically is made to another person as soon as it has been introduced to an electronic means of communication in such a way as to enable that person to become familiar with its content. According to the Supreme Court, “the declaration of will in electronic form is made on-line at the moment of its transition to an IT system operated and controlled by the recipient, i.e. when the declaration is accepted by the recipient’s server and the relevant data is registered on it”. In other words, the moment of the notice’s delivery by e-mail is the moment of its appearance in the employee’s inbox. The employer will bear the burden of proving this. Therefore, it would be safest to send the notice to terminate to the employee’s company e-mail address, provided that the employee is obliged to use it or at least has the possibility to log in to it outside the workplace.
When sending a notice to terminate to another e-mail address of an employee which is known to the employer, a message delivery confirmation function (currently available in most e-mail programmes) and the confirmation provided by the certification body providing the qualified signature service can be used. Requesting an acknowledgement of the message’s receipt by the employee is also recommended. Such an acknowledgement will only be an additional proof of delivery of the message and its absence will not in itself affect the effectiveness of delivery.
In any case, it is advised to inform the employee of the intention to send a notice, e.g. by videocall. As in the case of postal correspondence, it will be the employee’s responsibility to prove that they cannot read the notice to terminate.
A qualified electronic signature must be paid for, but for most entrepreneurs it will not be a big expense, and its use may prove to be a significant help in running a business, not only when terminating employment contracts and not only during the pandemic.