Labour and Social Security Journal 02/2023

Abstract The article focuses on the problem of the contradiction between the model of temporary employment declared by the legislator, based on the principle of causality and subsidiarity (as expressed in Article 2(3) of the Act on the employment of temporary workers), and the practice of using temporary employment, in which the scope of using this form employment is much wider. The author analyzes the current legal status and possible legal protection measures in the event of using temporary employment for non-temporary work, and – on the background of the provisions of Directive 2008/104/EC – presents possible directions of legislative changes aimed at eliminating the indicated contradiction.

The author discusses the phenomenon of simulating an employment relationship with a pregnant woman in order to obtain benefits from the social security system, from the perspective of civil law, labor law, criminal law, and the principles of social coexistence. Research on this issue has been presented in the form of a two-part article. The second part of the article is devoted to the types, role and assessment of factual circumstances (criteria) that should be taken into account when determining whether the employment relationship is apparently established, and it also presents the recommended procedure for determining whether the employment relationship is apparent. This theme was completed by three issues. First, the assessment of the possibility for the pension authority to make a binding legal qualification of the contract between the parties and the unilateral modification of the amount of the basis for calculating social security contributions. Secondly, about the issue of criminal liability of the alleged employee and the employer. Third, and finally, for the possibility of holding the State Treasury liable for damages for the abuse of control powers by the Social Insurance Institution against women who are pregnant or shortly after giving birth.

The Author presents in this Article the proposal of the approach that is different than up to now accepted by the Polish Constitutional Court (CC), based on of the 2005 and 2007 judgements, to the question, who in the text of the Polish Constitition (PC) is the nonprofessional judge, in particular the "ławnik" of the labour court or the social security court. The approach of the CC is up to now treated as correct, also by those Polish legal scholars who present critical point of view about what they define as Polish constitutional crisis (what has been started from the process of the change of the political power in 2015). According to the Author, in turn, the non-professional judge in the meaning of the Polish Constitution – contrary to the abovementioned jurisprudence of the CC – is not merely the "judge-like person"; whereas he/she is the judge in its fullest sense of the word, identical to the professional judge. Only such an exegesis of the text of the PC allows the stable existence of the civil society in the judicial power of such a state which wants to be the state of the rule of law, and does not wish to become the state of the rule by law.

This article is devoted to the issue of controlling the state of sobriety of employees. It analyses recent legislative changes to the Labour Code, supplementing this act with provisions on controlling the state of sobriety of employees and controlling employees for the presence in their organisms of substances acting similarly to alcohol. These considerations were then related to the legal provisions regulating this issue so far and the problems signaled in this context. This made it possible to formulate some general conclusions on the appropriateness of recent legislative measures, focusing above all on finding an answer to the question of whether the direction of changes chosen by the legislator is able to meet the need to ensure safe working conditions for employees.

The article aims to determine whether the provisions of the Benefit Act correctly take into account the content of the risk of temporal work- inability developed in the doctrine. The main thesis of the article boils down to the statement that the Benefit Act focuses on one aspect of risk- the impact of the disease on the psychophysical ability to earnings work. The second aspect of risk- reduction of income, is taken into account only in relations to employees, because only tchem are addressed under Art. 12 sec. 1 of the Benefit Act. There is no provision similar to the regulation contained in Art. 12 of the Benefit Act and § 49 SGB V, which would provide for the suspension of the right to sickness benefit while earning income connected to the social insurance contributions.

The aim of the study is to determine an answer to the fundamental question, whether the request for accessibility, regulated by the Act of 19th July 2019 on Granting Accessibility for Persons with Special Needs, may be submitted by the persons with disabilities who are employed by the entity responsible for providing accessibility. In answering the above mentioned question, it may be ascertained whether such persons may avail themselves of this remedy in order to enforce the legal protection afforded to persons with disabilities by the labour law in force. This requires to outline briefly the concept of accessibility and its importance for the protection of the rights and freedoms of persons with disabilities in the first place, and in the following order to try to define the role of the accessibility motion by establishing the relationship between it and the obligation imposed on specific entities. The study will then examine the scope of persons entitled to submit the motion, the list of entities responsible for examining it, the principles and possible ways for its implementation and the consequences of noncompliance. Finally, the conclusions of the discussions will be presented, supplemented by possible de lege ferenda requests.

As the analysis of case law shows, in practice there are situations (by no means as rare as it might seem) in which an employee was unlawfully dismissed with immediate effect during the course of the earlier employer's notice, which also violated the law. At the time the problem of the concurrence of claims for damages under both titles is updated. It would seem that this issue has been settled in the jurisprudence, but in the author's opinion, it should be looked at from a new perspective due to the argumentation contained in the judgment of the Supreme Court of June 21, 2022, II PSKP 106/ 21, regarding the function of responsibility compensation of the employer for defective notice and termination of the employment contract.