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Time limit after which claims expire for remedy of damage done to an employer by an employee

The Labour Code stipulates time limits after which an employer’s claims expire for remedy of damage inflicted by an employee due to failure to perform or improper performance of employee duties. Under Art. 291 § 2 of the Labour Code, claims of this kind expire one year from the day on which the employer became aware of the damage done by an employee, but no more than three years from the time the damage was inflicted. It is not entirely clear when these periods should be considered to start.

Individual commentators disagree on when the one-year time limit begins for seeking remedy of damage inflicted by an employee due to failure to perform or improper performance of employee duties. Some take the view that the time when the employer was aware of the exact scale of the damage is not relevant when establishing when that time limit begins. Supporters of this argument say that the intention of lawmakers was to link the beginning of the time limit to the moment it becomes known that damage has been done, and therefore the question of whether the scale of the damage was known at that time is irrelevant. The Supreme Court took a similar view in a judgment of 16 March 1999.

Many commentators argue however that “becoming aware that damage has been inflicted” amounts to learning not only that damage has been caused, but also who caused the damage and the extent of the damage. The Supreme Court concurred with this view in a judgment of 15 September 1978.

The other view is more persuasive, namely that an employer cannot pursue a claim for remedy of damage until the employee responsible for the damage, and the extent of the damage, is ascertained. The conclusion that the time limit begins from the moment the mere fact that damage has been inflicted is discovered would, in extreme cases, mean that a claim could expire before the employer discovers what kind of damage has been incurred, and thus before it is possible to seek compensation.

The time limit cannot be considered to have begun in each case in which information reaches the employer that damage has been inflicted. The time limit does not start until a person with authorisation to file a claim for compensation learns of the damage or could have learned of the damage in the normal course of operations.

The claims mentioned in Art. 291 § 2 of the Labour Code expire in any event three years from the day on which an employee inflicts harm. Discovery of damage or the person responsible has no bearing on this time limit. In this case, it is not the moment when an employee failed to perform or did not properly perform employee duties that defines this time limit, but when the employee’s conduct caused damage to the employer, i.e. the day on which the effects of failure to perform or improper performance of an employee’s duties in fact occurred.

The notion of inflicting damage and an event that causes damage cannot be considered to be the same. This is because an event that causes damages is specific conduct on the part of an employee, while the moment damage is inflicted is the date on which it occurs, which is when the effects manifest themselves. The effects are a result of the employee’s conduct, in the form of the loss of the employer’s assets. This means that the date of the event that causes the damage and the date the damage is inflicted do not have to coincide, because damage can occur and often does occur subsequent to the employee conduct that caused it. Art. 291 § 2 of the Labour Code means that the claims specified in this provision cannot expire due to passage of time before damage caused by incorrect performance of employee duties occurs (Supreme Court judgment of 5 October 2010).

The claim limitation period described in the provision in question also applies to claims raised by an employer when an employee does not account for or does not return property issued to them. This does not apply where an employee makes use of issued property as if it was their own, by selling, misappropriating, or deliberately damaging that property (Supreme Court judgment of 12 June 1980). In such a case, the employee’s actions are intentional, and therefore claims expire after the periods specified in Art. 291 § 3 of the Labour Code. This last provision states that if an employee deliberately causes damage, the time limits for expiry of claims are those stipulated in the Civil Code.

Marcin Wujczyk