When is trade union protection not applied?

In the current legal system, trade union protection covers both labor relations and civil law contracts. This does not mean, however, that this protection is absolute. The legislator defined a trade union activist as a member of the management board or other person performing gainful work who is a member of a given company trade union organization, authorized to represent this organization towards the employer or a body or person who performs labor law related activities for the employer. A trade union activist therefore represents a trade union whose aim is to protect workers’ interests and rights. The protection of the durability of a trade union activist’s employment relationship was regulated under the Act on Trade Unions. Pursuant to the provisions of art. 32 of the Act on Trade Unions, a ban on terminating employment contracts and the working conditions of trade union activists was established. Protection of trade unionists is aimed at creating appropriate conditions for them to act on behalf 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. Fear of losing a 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 employees. It should be emphasized that as a result of the amendment, which entered into force in January 2019, the protection of trade unionists was extended. Instead of an „employee”, in the provision cited, the concept of „a person performing paid work” appeared. As a result, the protection in question covers not only employees, but also other people working for profit. As a rule, an employer wishing to dismiss a trade union activist should obtain approval from the management board of the company trade union organization. However, there are some exceptions to this. The employer may terminate the employment contract of a trade union activist, even if the management board of the company trade union organization has not consented to it. What can an employee activist do in this case? If he does not agree with the employer’s decision to terminate the contract despite the disagreement of the trade union organization, he may refer the case to an employment tribunal. This is due to the fact that the parties to the case are the dismissed employee (plaintiff) and the employer (defendant), and the competent court is the labor court. Thus, the trade union is not a party to the case. The subject of the court’s assessment is also the issue of the reasons for the refusal to grant consent to the dismissal of an employee. The court will not verify whether the union members’ decision was not an abuse of law and whether it did not violate the rules of professional coexistence. The subject of the court case will be only the correctness of the exercise of the right 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 labor law. On the other hand, the consent or disagreement of the management board of the trade union organization to dismiss an employee is not the exercise of the law, but only the exercise of the rights of the trade union. If the court decides that the employment contract with a trade union activist is incorrectly terminated, it may order the employee to be reinstated or pay compensation. The latter solution is common, e.g. in the event of liquidation of the workplace. On the other hand, the court may reject the employee’s request for reinstatement and, in return, order the payment of compensation if, in the court’s opinion, the employee’s reinstatement to work would be contrary to the socio-economic purpose of the law or the principles of social coexistence. A possible claim by an employee to be reinstated in work will not always be legally justified. Each time the circumstances of a specific case should be examined (Supreme Court’s judgment of 17 September 2020, file reference number II PK 5/19). The protection of the durability of a trade unionist’s employment relationship is not absolute. One of the statutory exceptions is the actual cessation of business by the entrepreneur, which results directly from the declaration of bankruptcy or liquidation of the employer. However, the employer may dismiss a trade unionist also when it is supported by the principles of social coexistence or a socio-economic goal (Article 8 of the Labor Code). The Supreme Court has repeatedly commented on this subject on the basis of its rulings. The granted protection may not be abused. Trade union activity cannot be a pretext for unjustified privileging of an employee in spheres not related to his functions. However, the entrepreneur must assess whether the employee’s behavior was aimed at demonstrating his impunity (resulting from union protection) towards the employer, and therefore whether it can be considered drastically reprehensible. In such a situation, trade union protection can be revoked (Judgment of the Supreme Court of 7 June 2018, reference number II PK 90/17).

Referring to the jurisprudence (the judgment of the Supreme Court of March 21, 2019, file reference number II PK 313/17), it should be noted that the protection of trade unionists may be excluded, among others:

  • in the event of drastically reprehensible behavior of an employee violating the principles of social coexistence;
  • in the event of a gross breach of employee duties;
  • when the creation of a trade union was only intended to prevent dismissal.

Protection of trade union activists has been determined by regulations and is intended to give employees freedom and a sense of security in the 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

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