In the current legal system, the protection of trade unionists covers both employment relations and civil law contracts.

The legislator defined a trade union activist as a member of the management board or other person performing paid work who is a member of a given company trade union organization, authorized to represent this organization before the employer or a body or person acting on behalf of the employer in matters related to labor law. A trade union activist therefore represents a trade union whose aim is to protect the interests and rights of workers.

The protection of the permanence of the employment relationship of a trade union activist is regulated by the Trade Unions Act.

On the basis of the provisions of Article 32 of the Trade Unions Act, a ban on terminating employment contracts and working conditions of trade union activists has been established. The protection of trade unionists is aimed at creating appropriate conditions for them to act for the benefit of employees – the lack of such protection, in the event of a confrontation with the employer, would result in a high risk of losing employment by such a person. The fear of losing one’s job would most likely lead to a reduction in the activity of trade unionists, which in turn would not be beneficial to the interests of workers.

It should be emphasized that as a result of the amendment, which came into force in January 2019, the protection of trade unionists has been extended. Instead of „employee”, the term „person engaged in gainful employment” appeared in the above-mentioned provision. As a result, this protection covers not only employees but also other gainfully employed persons.

As a general rule, an employer who wants to dismiss a trade union activist should obtain approval from the management board of the company’s trade union organisation. However, there are some exceptions in this regard. An employer may terminate the employment contract of a trade union activist even if the management board of the company’s trade union organisation has not consented to it.  If an activist employee does not agree with the employer’s decision to terminate the contract despite the lack of consent from the trade union, he or she can refer the matter to the Labour Court.

However, importantly, the lack of consent of a trade union organization cannot be assessed by a court.

This is due to the fact that the parties to the case are the dismissed employee (the claimant) and the employer (the defendant), and the competent court is the labour court. Thus, the trade union is not a party to the case.

The court’s assessment also does not address the reasons for not granting consent to the dismissal of the employee. The court will not verify whether the decision of the trade unionists was not an abuse of the law and whether it did not violate the principles of professional coexistence.

The subject of the court case will only be the correctness of the exercise of the law by the parties to the employment relationship (i.e. the employee and the employer), i.e. whether the employment contract was terminated in accordance with the applicable provisions of the labour law. On the other hand, the consent or disagreement of the management board of a trade union organization to dismiss an employee is not an exercise of a right, but only an exercise of the trade union’s rights.

If the court rules that the termination of the employment contract of a trade union activist is irregular, it may order the employee to be reinstated or compensation paid. The latter solution is common, e.g. in the case of liquidation of a workplace.

On the other hand, the court may reject the employee’s request for reinstatement and instead order the payment of compensation if, in the court’s opinion, reinstatement of the employee to work would be contrary to the socio-economic purpose of the law or the principles of social coexistence.

A possible claim for reinstatement by an employee will not always be legally justified. Each case, the circumstances of a particular case should be looked at (Judgment of the Supreme Court of 17 September 2020, case no. II PK 5/19). The protection of the permanence of the employment relationship of a trade unionist is not absolute.

One of the statutory exceptions is the actual cessation of business activity by the entrepreneur, which results directly from the declaration of bankruptcy or liquidation of the employer.

However, an employer may also dismiss a trade unionist if the principles of social coexistence or socio-economic objectives warrant it (Article 8 of the Labour Code). The Supreme Court has repeatedly commented on this issue on the basis of its rulings. The protection granted must not be abused. Trade union activity cannot be used as a pretext for unjustified privileges for an employee in areas unrelated to the functions he or she performs. However, the entrepreneur must assess whether the employee’s conduct was intended to demonstrate his impunity (resulting from trade union protection) against the employer, and thus whether it can be considered drastically reprehensible. In such a situation, trade union protection may be revoked (Judgment of the Supreme Court of 7 June 2018, case no. II PK 90/17).

Referring to the case law (Judgment of the Supreme Court of 21 March 2019, ref. no. II PK 313/17), it should be pointed out that the protection of trade unionists may be excluded, inter alia:

• in the case of drastically reprehensible behaviour of an employee, violating the rules of social coexistence;
• in the event of a gross breach of employee duties;
• where the formation of a trade union was only intended to protect against dismissal.

The protection of trade union activists has been defined by law and is intended to give employees freedom and a sense of security in their trade union activities. However, it should be remembered that protection cannot be used to undertake activities aimed at activities that are contrary to the principles of social coexistence.

Source: https://poradnikprzedsiebiorcy.pl/-ochrona-zwiazkowcow-kiedy-sie-jej-nie-stosuje

Supported by Norway through Norway Grants 2014-2021, in the frame of the Programme “Social Dialogue – Decent Work”.