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Praca i Zabezpieczenie Społeczne 11/2024

ISSN: 0032-6186
Pages: 68
Publication date: 2024
Place publication: Warszawa
Binding: paperback
Format: A4
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DOI: 10.33226/0032-6186.2024.11.2
JEL: K31, K22, G34

Directive (EU) 2019/2121 of the European Parliament and of the Council amending Directive (EU) 2017/1132 introduces provisions on the protection of participation rights of employees of a limited liability company subject to a cross-border conversion, merger or division (Articles 86l, 133, 160l of Directive 2017/1132). The model for the protection of participation rights is based on one basic principle, i.e. the application of the rules of the company seat resulting from the reorganisation, and three exceptions to this principle. This model raises significant questions due to the vague definition of the exceptions to the basic principle and the system of references to other existing EU legislation. Therefore, the aim of this two-part article is to first analyse the principles of protection of participation rights in EU law (Part I) and then critically discuss their implementation in Polish law (Part II).

Keywords: employee participation; cross-border mergers; divisions and conversions of companies
DOI: 10.33226/0032-6186.2024.11.3
JEL: K31

The purpose of this paper is to analyse the provisions introduced into the Labour Code in 2023, which regulate the employer's obligations in response to a formalised request from an employee to work remotely, to convert a fixed-term employment contract into an open-ended contract, or for more predictable and secure working conditions and flexible working arrangements. The authors propose a new conceptual framework to help describe and systematise them. They also argue that these solutions create a new type of obligation in the employment relationship, further restricting the principle of freedom of contract and at the same time targeting the employer. According to the authors, the result has been a weakening of the basic labour law paradigm, which assumes that the employee's position in the employment relationship is primarily determined by his/her qualifications and the way in which the work is performed. These regulations also introduced a new form of communication between the employee and the employer, in the form of a legally enforced dialogue initiated by the employee.

Keywords: remote work; transparent and predictable working conditions; flexible working arrangements; employee requests to employers; employee claims against employers; changes in the content of the employment relationship
DOI: 10.33226/0032-6186.2024.11.4
JEL: I13, K31

In accordance with Act on pension benefits from the Social Insurance Fund, training benefit is a benefit payment for those who are entitled to get a pension for incapacity to work and who have lost their ability to conduct their previous line of work but can be retrained. The regulations on training benefit have been full of concerns. The data presented in this study shows that in 2023 the benefit practically ceased to be provided. The reason for this situation may be disadvantages of the legal regulations described in the article, as well as the incorrect practice of applying the law. In the text, a lawyer and a physician discuss not only the applicable legal regulations but also the future of the training benefit, taking into the account how the regulations can potentially be modified. The authors present possible solutions, from changing the scope of the applicable regulation, through introducing another benefit in social insurance instead of the training benefit, to completely abandon this type of pension. This article also shows that occupational activization of people unable to work is a serious and difficult challenge for the legislator, who is responsible for creating an effective system of benefits serving the implementation of the right to social security.

Keywords: training benefit; occupational activization; physicians of Social Insurance Institution
DOI: 10.33226/0032-6186.2024.11.5
JEL: K31

Employment in public administration involves special legal requirements established by labor law for employment in public administration offices. Recently, there has been a growing trend of adorning the body through tattooing and piercing. However, it is worth noting the issue of employment of people, who have body modifications and work in the public administration sector. Employment regulations for civil servants do not explicitly provide for restrictions and prohibitions on the employment of employees with body modifications. Instead, they provide for certain legal requirements that may restrict the employment of employees with visible body modifications. In public administration, there is a requirement of good repute or a duty of dignified behavior, which may affect the exclusion of employment of persons with non-standard body modifications (tattoo or facial piercing). The employer may also introduce restrictions, related to the external appearance of the employee's appearance in intra-company regulations. The theme of prohibition of discrimination against employees with body modifications arises in this regard. The paper will take up the legal aspects of the employment of an employee, in government offices, introducing body modification. 

Keywords: body modifications; public administration office; contract of employment
DOI: 10.33226/0032-6186.2024.11.6
JEL: K31

The Labor Code obliges employees to take care of the good of the workplace. The employee is obliged to take actions for the benefit of the employer and refrain from actions that could harm the employer. However, it remains an unresolved issue to determine to what extent an entrepreneur (employer of this employee), who, for example, runs several companies and actively participates in social life (including social media) can expect the employee to participate and actively support in building their personal brand. The purpose of this study is to answer the question of whether an employer can expect an employee to be involved in activities that serve to build the employer's personal brand. The problem will become even more significant when the employer builds their personal brand also in those areas of activity that are outside the scope of the employer's activity. Can the employer therefore expect the employee to be actively involved in building their personal brand, as an entrepreneur operating in other areas as well? It is obvious that an employee may participate in building the employer's personal brand, but it is necessary to decide whether the employee can be obliged to undertake such activities.

Keywords: personal brand; duty to care for the good of the workplace; recommendation; workplace; employee subordination
DOI: 10.33226/0032-6186.2024.11.7
JEL: K55

The aim of the article is to present the positions of the jurisprudence on the impact of the "error of the authority" in issuing a decision on the pension provision of officers performing "service for a totalitarian state" on the possibility of reopening the proceedings and obtaining compensation for the benefit. The main thesis of the article, formed on the basis of an analysis of the positions of the case law, boils down to the statement that the concept of "error of the authority" is understood in the case law in a non-uniform way, and directly affects the possibility of effective application for compensation of the benefit from before its unjustified reduction. An analysis of the issue allows us to conclude that the reopening of the proceedings as a result of an "error of the authority" should constitute a sufficient basis for compensating the applicant's performance from before its unjustified reduction. At the same time, there is no development of a uniform position of jurisprudence, including at the level of the Supreme Court's jurisprudence. It seems reasonable to take the position that the very reopening of the proceedings as a result of the occurrence of an error of the authority forces the assumption that the error occurred, and thus there are prerequisites for compensation of the performance from before the application for reopening of the proceedings, of course in a situation where the applicant was entitled to this benefit before the date of filing the application for reopening.

Keywords: error of the authority; service for a totalitarian state; resumption of proceedings; retirement benefit; disability benefit
DOI: 10.33226/0032-6186.2024.11.8
JEL: K31, K55

The article is devoted to the issue of re-determining the amount of the so-called June pensions acquired by the insured in 2009–2019. The need to recalculate them was drawn by the Constitutional Tribunal, which in its judgment of November 15, 2023 (P 7/22) found the unconstitutionality of the provisions providing for such a possibility only for retirees receiving retirement benefits at a later date. The Constitutional Tribunal's judgment, classified as a scope judgment about legislative omission, was perceived by a significant number of bodies applying pension regulations (including common courts) as only a postulative decision, addressed primarily to the legislator. The article presents a different approach to this type of Constitutional Tribunal judgments, expressed both in the jurisprudence of the Constitutional Tribunal, the Supreme Court and the Supreme Administrative Court, as well as in legal doctrine. The legal norm was also reconstructed, taking into account the constitutional standards discussed by the Constitutional Tribunal, and the correct – in the author's opinion – method of conduct of the bodies applying the law was indicated.

Keywords: Pension and disability insurance; June pensions; legislative omission; prohibition of discrimination; regulation and legal norm
DOI: 10.33226/0032-6186.2024.11.9
JEL: K31

The author discusses the case law of the Supreme Court on the protection of an employee against dismissal during an excused absence from work due to illness. In particular, she refers to one of the most recent Supreme Court judgments which further clarifies the effect of an employee's unexcused absence from the workplace at the time when the employer appears at the workplace to hand the employee a notice of termination.

Keywords: termination of employment contract with notice protection; notification of a declaration of intent
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