Praca i Zabezpieczenie Społeczne (Work and Social Security) 2020/08
Category: Praca i Zabezpieczenie Społeczne
Published: Tuesday, 22 September 2020 08:28
Written by Editor
- Institutions and concepts of civil law and social insurance law (3-10)
The article established that there is a relation of separateness and independence between social security law and civil law (autonomy of establishing and applying social security law in relation to civil law). It also considers the application of concepts and terms appearing in civil law under social insurance law, taking into account three possible situations: 1) provisions of social insurance law contain identical terms to those used in civil law and are clearly defined civilian pedigree, 2) in social insurance law there are terms similar to terms and concepts of civil law, 3) the regulation of social insurance law contains terms clearly different from the terms of civil law, but similar to them in terms of their functions or being synonyms in the Polish language.
- Contractual or tort liability of the employer? - critical remarks in the margin of the article by A. Musiala (11-16)
The author engages in a polemic with the position of Anna Musiala expressed in the article Employment relationship - basic issues (part 2): contractual or tort liability of the employer? Published in the issue 8/2019 of "Labor and Social Security". It indicates that the author's theses are analyzed in isolation from model issues and the resulting basic concepts. In his polemic, he also draws attention to the issue of protection of the employee's non-pecuniary claims in the concept of A. Musiał. In his opinion, the extension of the non-pecuniary damage model may destroy the compensatory nature of the pecuniary compensation.
- Compulsory accident insurance (17-22)
Accident insurance is intended to protect the insured in the event of inability to work as a result of an accident at work or an occupational disease, or of family members, in the event of his / her death resulting in the loss of the source of income. This raises the question of whether the title to accident insurance is related to the potential threat of insurance risk? The subjective scope of accident insurance reveals that it covers not only various forms of work performance, but also non-employment activities. However, in other situations when the risk of an accident at work or an occupational disease occurs, there is no accident insurance coverage.
- The composition of the court in the case of an employee's claims for unjustified or unlawful termination of the employment relationship from the employer pursuant to Art. 415 of the Civil Code in connection with Art. 300 k.p. (23-31)
The author discusses the significant issue, both from the theoretical and practical point of view, whether in the case of an employee's claims for unjustified or unlawful termination of the employment relationship brought against the employer pursuant to Art. 415 of the Civil Code (in connection with Art. 300 of the Code of Civil Procedure), and not on the basis of the Labor Code, the composition of the court specified in Art. 47 § 1 of the Code of Civil Procedure (i.e. the composition of one judge), or in Art. 47 § 2 point 1 letter a of the Code of Civil Procedure (i.e. the lay judge). In the judicature of the Supreme Court and common courts, there is a certain divergence of views on this issue. As it seems, the prevailing position is that a case concerning such claims is to be heard by a single judge.
- Effects of adjudicated unconstitutionality for the calculation of the leave equivalent of service officers. Considerations in connection with the judgment of the Constitutional Tribunal in case K 7/15 (32-40)
The subject of the article is to discuss the legal consequences of the judgment of the Constitutional Tribunal in the case K 7/15, which undermined the constitutionality of the existing rules for determining the amount of the cash equivalent for unused leave, due to a dismissed police officer. The legal gap resulting from the ruling and the related state of normative uncertainty, exacerbated by the legislator's inaction with regard to establishing new regulations, created numerous problems for the practice of applying the law. Currently, not only public administration bodies, but also administrative courts are facing them. The author tries to capture these problems and, referring to the theoretical model of the effects of the decisions of the constitutional court developed in science, indicates possible ways of solving them. The issues analyzed go beyond the simple consequences of the judgment, hence it is only a starting point for further considerations, in which specific methods of legal interpretation were used, including the concept of direct application of the constitution.
- Protection of employees - other members of the immediate family, exercising parental rights, in the light of the amendment to the Labor Code of May 16, 2019 (41-48)
The article presents the protective rights granted to employees-other members of the immediate family in the Act of May 16, 2019 amending the Act - the Labor Code and certain other acts. In the introduction to the article, it was recalled that the concept of "employee-another member of the immediate family" was introduced into the Labor Code due to the Act of 24 July 2015 amending the Labor Code and certain other acts. Thanks to the amendment of July 24, 2015, employees-other members of the immediate family were included in the circle of people entitled to maternity and parental leave. The following parts of the article discuss in detail the entitlement to remuneration, currently granted to employees-other members of the immediate family, for the entire period of unemployment, due in the event of starting work as a result of reinstatement. The significant relationship between the new ones was explained protective powers under Art. 47 of the Labor Code and art. 57 § 2 of the Labor Code and the amendment to Art. 177 § 5 of the Labor Code The positive significance of the changes made by the legislator in the amended Articles 50 § 5 of the Labor Code was also indicated. and 163 § 3 of the Labor Code Attention was also paid to the amendment to Art. 4772 § 2 of the Code of Civil Procedure, made by the Act of 4 July 2019 amending the Act - Code of Civil Procedure and certain other acts, within the scope of the court's competence to impose an obligation on the employer to continue employing an employee until the final conclusion of the proceedings. The final part of the article contains considerations on the weakest aspects of the amendment of May 16, 2019 carried out by the legislator. It was emphasized that the use of the term "employee-another member of the immediate family" by the legislator significantly weakens the positive effect of the discussed amendment to the Labor Code.
- The right to unused holiday leave for the period from the date of dismissal to the date of reinstatement (49-52)
The judgment of the Court of Justice of the European Union of 25 June 2020 in joined cases C-762/18 and C-37/19, CV concerns the employee's right to unused vacation leave for the period from the date of dismissal to the date of reinstatement. Pursuant to the Court's ruling, an employee who has been unlawfully dismissed and then reinstated in accordance with national law as a result of the annulment of his dismissal by a court order is entitled to annual paid leave for the period from the date of dismissal to the date of reinstatement. This judgment may be of significant importance for the Polish labor law practice. Until now, Polish courts have interpreted the provisions of law in such a way that in the event of reinstatement for the period of unemployment, due to the fact that this period is not the actual period of employment, the employee does not acquire rights dependent on being in an employment relationship, such as in particular, the right to holiday leave.
- The scope of the employee's freedom to determine alternative claims under Art. 45 § 1 of the Labor Code and art. 56 § 1 of the Labor Code (53-55)
The author discusses the case law of the Supreme Court regarding the change of the demand from reinstatement to work to compensation and vice versa, with particular emphasis on the judgment of February 11, 2020, I PK 243/18.
- Holiday and parenting (56)
- Review of Journal of Laws of 2020 from item 1183 to pos. 1344 (57-58)
Praca i Zabezpieczenie Społeczne (Work and Social Security) - the whole list