Labour and Social Security Journal 8/2020
Publication date: 2020
Place publication: Warszawa
The article states that there is a relationship of separateness and independence between social insurance law and civil law (autonomy of establishing and applying social security law to civil law). They also considered the use of words and notions in civil law under social insurance law, taking into account three possible situations: 1) social insurance law provisions contain identical notions to those in civil law and have a clear civilian origin; 2) the social insurance law has notions similar to those in civil law; 3) the regulations on social insurance law contain notions clearly different from the notions in civil law, but similar to them in their functions or being synonymous in Polish.
In the study, the author undertakes a polemic with the position of Anna Musiała. It indicates that the Author's theses are analyzed in isolation from model issues and the basic concepts arising from them. In his polemic, he also draws attention to the issue of protection of employee non-property claims in the concept of Anna Musiała. In the author's opinion, the extension of the non-pecuniary damage model may destroy the compensatory nature of monetary compensation.
Accident insurance serves to protect the insured in the event of incapacity for work resulting from an accident at work or occupational disease or family members in the event of his death, which resulted in the loss of the source of income. So the question arises whether the title for accident insurance is related to the potential risk of insurance risk? The personal scope of accident insurance reveals that it covers not only various forms of work provision but also non-profit activities. However, in other situations, when the risk of accident at work or occupational disease occurs, then there is no accident insurance coverage.
The article discusses an issue significant both from a theoretical and practical point of view, whether in a case of an employee's claims for unjustified or unlawful termination of employment, brought against the employer under Article 415 of the Polish Civil Code (in connection with Article 300 of the Labour Code) and not under the Polish Labour Code, the competent court composition is the one defined in Article 47 para. 1 of the Code of Civil Procedure (i.e. one judge composition), or rather in Article 47 para. 2(1)(a) of the Code of Civil Procedure (i.e. lay judges composition). There is certain divergence of views on this issue in the judicature of the Supreme Court and common courts. As it seems, the prevailing position is that a case concerning such claims is to be examined by a court composed of one judge.
The paper discusses the legal consequences of the judgement of the Polish Constitutional Tribunal in case no. K 7/15, which challenged the constitutionality of the existing rules for determining the amount of the payment for leave not taken of a dismissed policeman. The legal loophole and the state of normative uncertainty that have arisen as a result of the ruling, aggravated by the legislator's inaction in adopting new regulations, have caused numerous problems in the legal practice. It is not only public administration bodies, but also administrative courts that are facing them now. The author tries to point out these problems and, referring to the theoretical model of effects of constitutional court's rulings, developed in the jurisprudence, indicates some possible ways to solve them. The analysed issues go beyond the direct consequences of the judgement, and thus the latter constitutes only a starting point for further considerations, which refer to specific methods of legal interpretation, inter alia, the concept of direct application of the constitution.
The article presents protective rights afforded to employeesother immediate family members by the Act of 16 May 2019 amending the Act — Labour Code and certain other acts. At the beginning, it was reminded that the term "employee-other immediate family member" was introduced in the Labour Code by the Act of 24 July 2015 amending the Act — Labour Code and certain other acts. Due to the amendment of 24 July 2015, employees-other immediate family members were included in the class of persons entitled to maternal or parental leave. The following parts of the article discuss specifically — as presently afforded to employees-other immediate family members — the right to pay for the entire period of unemployment applicable in case of taking up employment as a result of reinstatement. The article explains the crucial relation between the new protective rights under Article 47 LC, Article 57 para. 2 LC and the amendment to Article 177 para. 5 LC. It also points to the positive impact of the reforms made by the legislator in the amended Articles: 50 para. 5 LC and 163 para. 3 LC. Attention was also drawn to the amendment to Article 4772 para. 2 of the Code of Civil Procedure, introduced by the Act of 4 July 2019 amending the Act — Code of Civil Procedure and certain other acts, in relation to the court's power to impose on an employer the obligation of further employment of an employee until valid conclusion of judicial proceedings. The final part of the article contains considerations on the weakest aspects of the reform introduced by the legislator in the amendment of 16 May 2019. It was emphasized that the legislator's use of the term "employee-other immediate family member" significantly impairs the positive effect of the commented reform of the Labour Code.
The Court of Justice of the EU on 25 June 2020 issued a judgement in joined cases C-762/18, QH vs. Varhoven kasatsionen sad na Republika Bulgaria and C-37/19, CV vs. Iccrea Banca SpA, concerning the right to paid annual leave for the period from the dismissal to the reinstatement. According to the ruling, a worker who has been unlawfully dismissed and subsequently reinstated by a ruling, is entitled to paid annual leave for the period from the date of dismissal until the date of reinstatement. This judgment seems to be important for Polish labour law practice. According to Polish jurisprudence, in the event of reinstatement, for the period of unemployment, due to the fact that this period is not the actual period of employment, the employee does not acquire rights dependent on remaining in an employment relationship, in particular, the right to paid annual leave.
The author discusses the jurisprudence of the Supreme Court regarding the change of the demand from reinstatement to work to compensation and vice versa, with particular emphasis on the judgment of February 11, 2020, I PK 243/18.
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