Bailiff service in matters of labor law – no more fiction of delivery, but in practice only for sued employees
The employer terminates the employment contract with the employee and calls the employee to return the company car, but this car is not returned. After unsuccessful attempts to contact the former employee, the employer decides to bring an action against the employee, however, it turns out that at the address appearing in the employee’s personal file, no one receives correspondence.
In the current legal status, double notification of a postal item is tantamount to effective delivery. In the absence of action on the part of the defendant in such a situation, the courts often decide in accordance with the claim. However, if an employee, for example, went abroad and learned about the sentence issued after the end of the proceedings, he usually asks for the reinstatement of deadlines for carrying out procedural activities and if he shows that he does not live in the „old” address anymore, the presumption of effective delivery is revoked and all proceedings start again.
A new institution for bailiff delivery is to provide a remedy for such situations. When will it apply?
- The first condition is not to collect the claim or other pleading despite having been notified twice;
- Secondly, the defendant has not previously received any letter in the case;
- Thirdly, the defendant did not refuse to accept the letter (if he refused, he had to know about the package, and therefore it is assumed that it was successfully delivered);
- Fourth, the defendant is not required to disclose and update data in court registers (NOTE! This condition basically eliminates the use of this institution in the relation plaintiff – employee vs. defendant – employer; If a given entity is required to update its data in official registers – KRS, CEIDG, deliveries made to the addresses appearing in them are considered effective);
- Fifth, the exclusion of the application of this institution is not deriving from specific provisions.
How will bailiff delivery be conducted in practice?
STAGE I The chairman of the adjudication panel should notify the plaintiff of the prerequisites for the use of bailiff’s delivery, while sending the plaintiff a copy of the undeliverable letter, and oblige the plaintiff to deliver the letter through the bailiff. As a result, it is not the employer who acts as the plaintiff, but the court will assess the legitimacy of the application of the institution in question in a given case.
STAGE II Then, after receiving the undertaking, the plaintiff will have to apply to the bailiff with the relevant request for service.
STAGE III Bailiff within 14 days:
- delivers a letter with acknowledgment of receipt and date indication = the parcel is successfully delivered;
- makes arrangements that the person lives at the address indicated, but the correspondence has been not received = the parcel is successfully delivered;
- makes his own findings and states that the addressee does not reside at the given address or fails to clarify the case = no effective delivery – the defendant receives a letter with relevant information – then the plaintiff will be able to order the bailiff to take steps to determine the defendant’s current address.
COSTS. The employer will have to pay for the bailiff’s activities – for delivering the letter to one address PLN 60, and for taking actions aimed at determining the current address of the employee (former employee) PLN 40.
STAGE IV IMPORTANT! The employer will have two months from the date of delivery of the obligation to apply for bailiff’s service, to submit to the case file a confirmation of delivery of the letter by the bailiff to the respondent employee (alternatively, the employer will be able to return the letter providing the defendant’s new address or provide evidence that the defendant is at the address to which attempted delivery was directed). If he fails to do so, the proceedings will be suspended. In such a case, if within the next three months the court has not received a request to start proceedings, the court will discontinue the proceedings.