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26 September 2012
On January 24 2012 the Supreme Court ruled on the role of company trade union organisations in termination decisions (III PZP 7/11).
The employer had requested that each company trade union organisation submit lists of all employees benefiting from their protection. The request was based on Article 30(2)(1) of the Trade Unions Act.
One of the organisations refused to submit the requested list. The employer assumed that following this refusal, it had been released from the obligation to cooperate with the organisation and decided to terminate the claimant's employment without first consulting the trade union.
The Supreme Court ruled that the failure on the part of the company trade union organisation to provide information requested by the employer concerning the employees that benefited from its protection did not release the employer from the obligation to notify the organisation of its intention to terminate an employee's contract, as long as the organisation's failure to provide such information was justified by the need to protect personal data.
Under Article 30(2)(1) of the act, in individual employment matters in which labour law provisions require an employer to cooperate with a company trade union organisation, the employer must send the organisation a request for information about employees who benefit from the organisation's protection - both about the members of the organisation and about those employees who agreed that their rights would be defended by the organisation without joining the union. Furthermore, the union's failure to forward this information to the employer releases the latter from the obligation to cooperate with the union in matters concerning these employees.
Thus far, the Supreme Court has expressed two conflicting positions regarding this issue. According to the prevailing view, it is sufficient for an employer to submit a single, general request regarding protected employees to each trade union organisation in the company. Subsequently, the organisations should update this information on an ongoing basis, without the need for further requests from the employer. However, according to the alternative view, the employer should address a separate request for information on each occasion to all trade union organisations in the company regarding the employees who benefit from protection, before taking any action concerning an employee that might make it necessary to cooperate with such organisation.
The Supreme Court stressed that previous rulings have not referred to employers' obligations arising under the Personal Data Protection Act; only the administrative courts have dealt with this problem. In their rulings, the administrative courts indicated that employers, as entities that process employees' personal data, should act with particular diligence in order to protect the respective persons' interests. In particular, they are obliged to ensure that the data is gathered for specific purposes, in line with the act. Furthermore, such data gathering must be content-related and adequate for the purposes of processing the data. A request for the names of all employees that benefit from the protection of a given trade union organisation may therefore be addressed to such organisation only if the employer undertakes to take steps in respect to all of these employees. Requests for lists of all employees are not permissible if the employer intends to take action with respect to only one or a few employees.
The Supreme Court admitted that the administrative courts' position is debatable to a certain extent. In particular, employees' privacy is endangered under this approach, since the employer must ask each company trade union organisation separately each time that the employer intends to take action regarding employment, in particular in case of termination for cause. Each trade union will then be informed of the employer's intentions, even if the affected employees are not protected by them.
The Supreme Court opined that neither of the two aforementioned interpretations is flawless. When making its decision, the court not only was influenced by the reasoning of the administrative courts, but also aimed to reconcile the divergence between common courts and administrative courts.
The Supreme Court resolution is not binding and subsequent judgments are likely to depart from its reasoning.(1)
The ruling is also extremely controversial. First, it might be deemed contradictory to the wording of Article 30(2)(1) of the Trade Unions Act, which mentions requests for information regarding employees that "benefit from the organisation's protection", a phrase that should be interpreted to include any employees enjoying such protection. Furthermore, the need to protect employees' personal data conflicts with the need to protect their personal rights (privacy), but no justification has been given as to why the provisions of one act should overrule the provisions of another. Moreover, Article 30(2)(1) of the act does not refer to information regarding membership of a trade union (which would constitute sensitive personal data within the meaning of the Personal Data Protection Act), but to information regarding whether an employee benefits from the protection of a trade union (which is not necessarily connected with union membership). No clear answer is therefore forthcoming as to whether employers' requests addressed to trade union organisations concerning the names of all employees protected by them are admissible.
This issue will have a material impact on the situation of unionised companies in Poland, as employers take a major legal risk if they decide to terminate an employment agreement where no reply to the general question regarding all protected employees has been received from a union. It is likely that the common courts, based on the Supreme Court's ruling, would find such termination to have been effected in breach of law. On the other hand, if such individual requests are filed by the employer each time, breach of privacy could be alleged (especially by non-unionised employees). Furthermore, employees would be warned about the employer's intention to terminate them and therefore could, for example, take sick leave to avoid the risk of termination.
For further information on this topic please contact Roch Pałubicki or Karolina Nowotna at Soltysiński Kawecki & Szlęzak by telephone (+48 22 608 7000), fax (+48 22 608 7070) or email (firstname.lastname@example.org or email@example.com).
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