11 Whistleblowing in Poland According to Legislation and Case Law
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Whistleblowing in the Case Law The case law of Polish courts which concerns the whistleblowing mainly relates to disputes between employees and employers concerning the dismissal of the employee either with notice or without notice (disciplinary dismissal) by the employer. It should be underlined that the judicial control of valid grounds for the dismissal is possible only in case of an open-ended contract of employment. In case of fixed-term contracts, the labour court may only control the legality of notice. Moreover, in case of the fixed-term contracts, the dismissed employee may only demand the payment of damages in case of illegality of the dismissal with notice. In case of open-ended contracts, the employee may also demand the reinstatement in work, if she/he was dismissed with notice (Article 45 § 1 and 2 of the Labour Code). However, even in case of the open-ended contracts, the labour court adjudges only damages if the reinstatement in work is impossible or aimless. As the Polish Ombudsman pointed it, the whistleblower usually has no chances to be reinstated in work, as the labour courts estimate that the conflict between the employee and the employer makes it impossible or useless.16 According to the information delivered by the Ombudsman, the most common form of reprisals is the dismissal of the whistleblower with notice justified by the reason that his/her post of work is being liquidated. In such a case, labour courts have a narrow scope of appreciation if the dismissal is justified in reality. According to the Supreme Court,17 the liquidation of the post of work in the scope of the real organizational changes justifies the dismissal of the employee. Decisions concerning the utility of maintaining of this post belong to the sphere of employers’ prerogatives and shall not be subject to the control of the labour courts. This statement was confirmed in the more recent case-law. In the judgment of the Supreme Court of the 5th September 2001 (I PKN 613/00), the liquidation of the post of work as such is not a sufficient justification for the dismissal. The causal link between the liquidation and the given notice should be examined. However, according to the statement of the Supreme Court, if the causal link is established between the liquidation of the post and the dismissal, the liquidation constitutes the valid ground for the dismissal. The Supreme Court is not entitled to examine business or personal reasons of such liquidation.18 Therefore, the control of the labor court is restricted to the analysis if the liquidation of the post of work really took place and if it was a truthful and not only an apparent reason for dismissal. Then, the disclosure of irregularities by an employee may also lead to the disciplinary dismissal. According to the relatively recent judgment of the Supreme Court,19 the aim of the employee to prevent the wages discrimination by the employer is not a fair ground to dismiss the employee without notice. In the circumstances of 16
See the Ombudsman’s letter of the 3rd March 2009, RPO-606960-III/09/RP/AF, p. 4. Judgment of Supreme Court of 23th May 1997, I PKN 176/97. 18 Decision of the Supreme Court of the 2nd February 2012, II PK 252/11. 19 Judgment of the Supreme Court of the 26th May 2011, II PK 304/10. 17
