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15 May 2013
Following an employer's instructions is one of the basic obligations of an employee. However, Polish labour law principally identifies three situations in which an employee may disobey his or her employer's instructions:
The Labour Code does not explicitly state the consequences of an employee following unlawful instructions or adhering to unlawful practices applied at the workplace and/or imposed by superiors. Such actions could clearly expose the employee to potential liability under criminal or administrative law, but the consequences under employment law are less obvious.
The Supreme Court has dealt with this issue in a series of rulings dated July 26 2012, December 10 2012 and September 10 1997.(1)
On July 26 2012 the Supreme Court issued a ruling in which it stated that a superior's behaviour and practice at an employer do not, as a rule, release the employee from liability for his or her own unlawful actions.
The claimant was employed in a coalmine in the position of chief foreman (ie, a supervisory position). Besides recording their working time, employees who worked underground (including the claimant) were obliged to register each time that they descended underground and each time that they returned.
The employer found out that on one occasion the claimant had not descended underground, despite stating to the contrary in his record. On examination of the documentation, the employer discovered that the claimant's documentation concerning descents underground on other days had also been fabricated. It appeared that other employees had also been committing such fraud, but in the claimant's case the problem was the most extensive.
The employer terminated the employment relationship with the claimant without notice based on Article 52(1)(1) of the Labour Code (ie, a serious breach of basic employment obligations).
Circuit Court decision
The Circuit Court established that there had been a practice of fictitious descents underground at the employer's undertaking, which had been accepted by superiors. In particular, the claimant's superior had undertaken the same reprehensible action as the claimant. However, none of the other employees had been held responsible for this misconduct.
The Circuit Court therefore held that the misconduct committed by the claimant could not be qualified as a serious breach of his employment obligations and the termination without notice was not justified.
Supreme Court decision
The Supreme Court stressed that two factors must exist in order for an employer to be entitled to terminate the employment:
The superior's reaction to the employee's behaviour could not be deemed as influencing the sphere of illegality. The behaviour of a superior creates no new norms that would exempt an employee from liability for his or her actions. The superior is usually also an employee of the employer and does not typically have a full right to represent the employer towards the employee. A superior has only a segment of the employer's rights connected with the authorisation to manage employees. Therefore, in the examined case, only the employee's fault could be influenced by the superior's acceptance of the misconduct.
In its ruling Supreme Court supported a view widely represented in case law and legal writings, according to which employee fault is a subjective notion. Whether fault may be attributed to an employee in any given situation depends on factors such as his or her position, educational and professional background. Each case should be judged individually. Automatic consideration that a superior's acceptance of misconduct would prevent the attribution of the fault to the relevant employee is invalid. In particular, the employee may not use this argumentation if the violation of the employment obligations is obvious (eg, the obligation to remain sober within working hours).(2)
Furthermore, the Supreme Court argued that deeming a superior's actions as exculpating an employee would release employees from any liability for their actions and discourage them from making well-thought-out decisions.
In a December 10 2012 decision the Supreme Court considered the circumstances surrounding the unlawful destruction of poisonous substances at an employer's undertaking (poisonous liquids were poured into a sink). The employee in charge of such conduct (the claimant) had not personally destroyed the substances in such a manner, but had not made suitable provision for their disposal either. The poisonous substance was consequently thrown away as regular waste. The employer held that the employee had failed to take appropriate care of the substances, thereby exposing third parties to danger and violating the employer's interests.
The Supreme Court found that termination of employment without notice was in compliance with the law. However, the court held that no serious breach of the employee's obligations would have taken place if the claimant had refused to apply the procedure of destroying the substances due to unlawfulness.
In a September 10 1997 decision the Supreme Court found that an employee (the claimant) must have been aware that her superior's instruction was unlawful. The claimant was employed as an accountant and had been asked by her superior to increase the amounts of benefits paid to a number of other employees. The court stated that, as a high-ranked employee, the claimant must have been aware that such payments would exceed the salaries fund planned in the budget and thereby be unlawful. According to the court, in such a situation the employee should have drawn her superior's attention to the illegality of the requested action.
It follows from the reasoning of the July 26 2012 ruling that internal practices applied commonly at an employer's workplace do not automatically release an employee from liability (in a broad sense) for breach of employment obligations. However, the Supreme Court has stressed the need to evaluate individual factors when determining an employee's fault.
Furthermore, higher standards of understanding of the consequences of adhering to particular procedures are expected from employees holding higher positions. Consequently, whether an employee can invoke the excuse that the practices were accepted by the employer will be judged on a case-by-case basis. At the same time, the Supreme Court has emphasised that employees should consciously approach the performance of their employment duties in order to be able to identify unlawful practices or instructions. The court's approach thereby appears to contribute to a more restrictive view of employee responsibility and autonomy in the workplace.
For further information on this topic please contact Roch Pałubicki or Karolina Nowotna at Sołtysiński 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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