Can the lack of OHS training be the basis for disciplinary action?
Occupational medicine examinations, onboarding, OHS training – in addition to performing duties within a given position, employees must devote time to completing formal employment issues, including those indicated in the Labor Code. Can disregarding, for example, the obligation to undergo OHS training – despite repeated notifications – be the basis for disciplinary dismissal from work?
Disciplinary dismissal, i.e. termination of an employment contract without notice, applies to any type of employment contract and to any employee, even those protected from retirement or pregnant women. Pursuant to Civil Procedure Code Art. 52 §1, termination of the contract due to the employee’s fault may take place in the event of a serious breach of duties, committing a crime or the employee’s culpable loss of rights necessary to perform work in a given position. Since the information about the mode of dismissal is not time-barred and will be included in the employment certificate, it can cause great difficulties in finding a new job, and even postponement or lack of unemployment benefit.
The Labour Code in Article 211 concerning the basic duties of an employee clearly indicates that the employee is obliged to take part in training and instruction in the field of regulations and principles of occupational health and safety and is obliged to undergo examinations to check knowledge. Also – in accordance with the regulations – the employer is responsible for the state of occupational health and safety in the company and is obliged to protect the health and life of employees. It is also the employer who should ensure that the employee participates in OHS training appropriate to the type of work performed and bears the costs of this training.
– Failure to participate in the obligatory OHS training designated by the employer may therefore be treated as a failure to comply with a business order, and the employer has the option of imposing a fine on the employee. In addition, the regulations clearly state that without OHS training, an employee cannot be admitted to work (Labor Code, Art. 237³: An employer may not allow an employee to work for which he does not have the required qualifications or necessary skills, as well as sufficient knowledge of the regulations and principles of occupational health and safety). Thus, if the employee does not undertake training, the employer cannot allow him to perform his official duties, and this may result in serious problems in the organization and cause financial losses – says Magdalena Włastowska – Occupational Safety Expert at W&W Consulting.
An employee’s disciplinary dismissal may be applied by the employer in the event of a serious breach of basic employee duties. – It is the employer who must decide whether a given situation is classified as a serious violation, guided by its degree and possible loss on the part of the company. One of the reasons that is a justification for this type of termination of the contract is, m.in, deliberate action to the detriment of the employer. In order to determine whether the lack of participation in the OHS training was a deliberate, conscious action to the detriment of the employer, it is necessary to take into account all the circumstances of the event: whether the training was planned during the employee’s working time and whether the employer set the employee time to carry out the training and whether the employee received information about the training – adds the W&W Consulting Expert.
Source: W&W Consulting
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