Delivery of the employer’s statement on termination of the employment contract with notice or without notice period during a pandemic
The most effective way to serve the employer’s statement on termination of the employment contract with notice or without notice period is no doubt to present it in person. However, due to common in the pandemic remote work by employees sometimes it may be difficult to hand over the employer’s statement in person.
Polish Labour Code does not regulate the rules for filing statement of declaration of intent, therefore in this regard, in accordance with article 300 of the Labour Code, the provisions of the Civil Code apply, namely article 61 § 1 of the Civil Code, under which a declaration of intent which is to be made to another person shall be deemed made at the moment when it has reached that person in such a way, that he could have acquainted himself with its contents. Taking the above into consideration, termination is effective, when the employee has been able to read its content i.e. when the termination notice and the employer’s declaration of intent have been delivered to him. Before the onset of the pandemic, in a situation when the termination notice could not be given to the employee in, the delivery was made by the registered mail against a receipt to the employee’s address (excluding cases where the absence of the employee at work had justified grounds). Then, if the employee did not receive the letter containing the termination notice for 14 days, was accept a legal fiction i.e.it was considered that employee read the statement. Currently, due to the binding article 98 the Act of 16 th of April 2020 on specific support instruments in connection with the spread of Virus SARS-CoV-2, failure to collect the letter from post office, even after a long notification- it will take effect at the earliest after 14 days when the epidemic will cancel. Due to the above, missed letter with termination, during the pandemic will lead to ineffective termination, and thus the parties will be obliged to continue the employment relationship.
So what is the most effective way to service to the employee a statement on termination of the employment contract, if it is impossible to hand it over in person during a pandemic?
In this term, attention should be paid to art. 78 ¹ § 2 of the Civil Code, according to which declarations of intent made in electronic form shall be equivalent to declarations of intent made in writing. In order to file a declaration of intent in an electronic form, the letter shall be provided with a qualified electronic signature (art 78 ¹ § 1 of the Civil Code).
Taking the above into consideration, the most effective way to service to the employee a statement on termination of the employment contract with notice or without notice, if it is impossible to hand it over in person during a pandemic, is to send a document to him in an electronic form signed with a qualified electronic signature.