Both employers employing staff in Poland at Polish branches, representative offices or affiliated companies and employers employing staff in Poland without any legal presence here may become a party to employment-related litigation, namely a lawsuit brought by an employee or ex-employee before a Polish court.
As a rule, a claim can be brought by an employee or an ex-employee before a Polish labour court if work was performed in Poland, regardless of where the employer is located or registered. This rule applies to employers from EU member states (based on Art. 22 of the Brussels I Regulation) and employers from other countries (based on Art. 1103(4) §1 of the Civil Procedure Code). There are several things specific to Polish employment litigation worth knowing, especially as they differ significantly from the rules known to common-law systems.
1: Courts, Judges and Jurors
Labour law cases brought by an employee or ex-employee are decided by the labour departments of ordinary courts (commonly called “labour courts”).
Cases concerning an employee’s appeal from termination of employment are heard in the first instance by a professional judge accompanied by two laypeople (members of the public, sometimes called “jurors”—they all sit behind the judge’s table). The role of the jurors is not the same as their role in common-law systems, however. It is to listen and share their views with the judge and to vote on the judgment (the jurors do not pass a verdict before the judge passes the judgment). They decide the entire case together with the judge (although in practice are likely to follow the views of the judge). In some cases the judge also allows the jurors to ask questions during the hearing. The jurors are not subject to any selection by the parties, but are appointed and assigned to a case automatically by the court administration.
Other cases in the first instance are tried by one judge only.
In the second instance, cases are heard by three professional judges only and there are no jurors.
An employer defendant may act personally (through its ordinary representatives) or be represented e.g. by a lawyer.
An employee plaintiff may act personally or be represented not only by a lawyer, but also by a trade union representative, a labour inspector, or another employee from the same workplace.
No advantage is in general given to a party appearing without a lawyer. The only difference is that the court will advise such party of some of their rights or obligations regarding filing a response to the claim and an appeal.
3: Burden of Proof
In cases regarding appeals from termination of an employment contract, the burden of proof lies on the side of the employer. The employer has to prove that the formal requirements for termination were met and that the reason for termination was factual, true, and justified termination. If the employer fails to do so, the employee can win the case even if he/she does nothing else than file a lawsuit.
4: Preparation for Trial / Pleadings
A court case starts with a statement of claim being filed by the plaintiff (with a copy for the defendant) with the labour court. Ideally the statement of claim should contain all arguments of the plaintiff and all motions to admit evidence. Evidence in a document or other tangible form should be attached; with regard to witnesses, their names and addresses should be indicated so they can be summoned by the court. If any evidence is not listed, the plaintiff may have difficulties introducing it later, unless the delay was objectively justified or admission is separately allowed by the court (however, the courts in practice have a rather flexible approach to the statement of claim and often allow plaintiffs to file additional pleadings with additional evidence even at later stages of the trial).
The court sends a copy of the statement of claim to the defendant, indicating a period within which the defendant must respond—in practice almost always 14 days (however the court may grant a longer period). Like the statement of claim, the response should contain all arguments of the defendant and all motions to admit evidence, with the same consequences for failure to list the evidence. Courts are often stricter towards employers than employees (in particular if the employee is the plaintiff) in refusing to admit any additional evidence not covered by the response.
After the statement of claim and the response have been filed, the court sets the date and hour of the first hearing and notifies the parties in writing. Depending on the court and its location in Poland, the time between filing a response and the date of the first hearing is usually 2–8 months (the longer period applies to bigger cities). Within this period, nothing happens apart from the court possibly summoning witnesses by post to attend the hearing. This is because all preparation work should be completed in the phase of preparing and filing the statement of claim and the response to the statement of claim.
5: Pre-trial Hearings
Polish civil procedure does not have an institution, present in some common-law jurisdictions, of a pre-trial hearing during which the court decides whether the case should go to trial (whether it has reasonable grounds or reasonable prospects of success).
Once a statement of claim is filed with the court, the case will always go to trial and be continued until it reaches a judgment. The only exceptions are when the plaintiff withdraws the claim (because of the plaintiff’s decision not to continue the case or as a result of an out-of-court settlement) or when the parties settle the case before the court.
The proceedings before a labour court in Poland are not concentrated in time as they are in common-law systems. There are usually several hearings scheduled at intervals of several months (depending on how busy the court is), and at the end of one hearing the court sets the date of the next hearing.
In some cases the first hearing is merely formal, with no witnesses examined (or called by the court), when the court asks the parties whether they sustain their position or are willing to settle. Also, in some cases if the court decides that it needs additional clarification of the particulars of the claim, it may conduct an “informative” examination of the plaintiff (usually if the employee is the plaintiff). Such examination does not formally constitute evidence but is only intended to clarify the case.
Usually, depending on how much time the court has booked for the case, during each hearing it will examine some of the witnesses (usually 1 to 3).
After hearing of witnesses is finished, the parties (first the plaintiff and then the defendant and their lawyers) are able to present their closing arguments, which however are only a summary of the legal and factual argumentation that normally is contained already in the statement of claim, the response to the statement of claim and further pleadings (in Poland the model of a trial is rather written than oral). After this the court formally closes the hearing and issues the judgment.
7: Witnesses (non-parties) and Parties
Under Polish procedure, unlike in common-law systems, a witness can be any person but not a party. The parties are not obliged to testify, but if they (or one of them) decide to do so, they do so at the very end of the trial, after all witnesses have been examined. They are obliged, like (non-party) witnesses, to testify truthfully and are subject to criminal sanctions for perjury. Although testimony of a party is not formally deemed to be evidence of lesser value, in practice the courts treat it as such, similar to the testimony of witnesses related to the parties, assuming that they are or may be personally interested in the outcome of the trial.
Also unlike in common-law systems, under Polish procedure written witness statements are not collected before the trial or at any later stage. Testimony can serve as evidence in the case only if it is made by the witness personally before the court. For this reason, the witness’s name and address must be indicated to the court in writing (usually in the statement of claim or the response to the statement of claim) by the party wishing to question the witness. The court then summons the person to appear in court and testify. Calling a person to be a witness does not require the witness’s consent. A person who has been summoned must attend the hearing. If persons fail to appear without justification they will be fined (this can be done twice), and if they still fail to appear they can be arrested and brought before the court by force.
The hearing starts with identification of the witness by the judge (they are asked by the judge to state their name and provide ID and details about their age, occupation, and whether they are related or a stranger to the parties). Customarily the party who applied for hearing of a given witness questions the witness first; the judge also normally asks some initial questions before the parties and may also ask questions at any later stage.
During hearing of a witness any other witnesses must remain outside the courtroom.
Testimony of witnesses under Polish civil procedure differs from the examination/cross-examination common-law model. There is no concept of a witness for the plaintiff or a witness for the defendant; all witnesses are deemed to be witnesses to the case, and both parties are prohibited from asking them leading questions. Witnesses must be asked only open-ended questions about facts relevant to the case. They are normally not allowed to testify about their opinions and views. Hearsay evidence is admissible (not only direct but also indirect witnesses can be heard before the court).
8: Other Evidence
Evidence other than witness testimony (especially documents) is not formally presented before the court (it should be attached to the statement of claim, the response to the statement of claim, or other pleading), unless it is an audio or video recording. The court will normally only make a formal statement in the record of the hearing that it admits (or refuses to admit) certain written evidence, and will consider it by reviewing the file before issuing a judgment.
Once the case is closed the court issues the judgment. The judge(s) may issue the judgment at the same hearing during which the case was closed, or can postpone issuing the judgment by up to two weeks.
If an employee is the plaintiff, the court can grant or overrule the claim of the employee. If the employee has chosen a claim from a range of alternative claims which proves to be unjustified (e.g. if the employee sought reinstatement and not compensation), the court can automatically take into account an alternative claim, e.g. awarding compensation instead of reinstatement in justified cases even if the employee did not seek it.
At the beginning of every hearing before the labour court, the court encourages the parties to reach a settlement or engage in mediation.
The parties to the dispute can settle at any time before the judgment is issued (at both the first and second instance). Settlement may be reached before the court, in which case the terms of the settlement are dictated by the parties (or the judge) for the record, the record is signed by both parties (or their representatives), and the case is closed by the judge. If the parties negotiate and settle outside of court, they must conclude a written settlement agreement and the plaintiff must then withdraw the claim, as otherwise the trial will continue. A settlement before the court has the advantage that the court refunds to the claimant all or part (depending on the stage of the trial) of the court fee paid with the claim (if a fee was due at all).
In general the labour court is obliged to analyse the settlement terms or reasons for withdrawal of the claim, and may deem it inadmissible if it violates the legitimate interest of the employee. This power is mostly theoretical, however, as courts normally do not question settlements or withdrawals.
Unlike in many common-law systems, there are no penalties for failure to settle or engage in settlement negotiations at all, even for the party who rejected a reasonable offer and then lost entirely (negotiations and offers are also confidential if made by professional attorneys and cannot be used against the other party at any stage of the proceedings).
As a rule (there are several exceptions which the court may apply in special circumstances) the party losing the case is obliged to pay the other party the statutory court fee which the other party paid (if any), statutory legal representation fees, as well as reasonable and documented expenses and costs of the lawyers (lawyers’ expenses).
However, in contrast to systems existing in many other countries, the amount of the statutory legal representation fee awarded in the Polish system by the court to the winning party is totally different from the actual fee for legal representation that the party has to incur.
- For cases where the claim is for reinstatement, the cap for that fee is PLN 180–1,080 for the first instance (the courts almost always award PLN 180).
- For cases where the claim is for compensation of over PLN 50,000 but less than PLN 200,000, the cap is PLN 4,050–24,300 for the first instance (the courts almost always award PLN 4,050).
This means that at the end of the day each party (winning or losing) will pay their lawyers’ agreed fees, and the statutory legal representation fee will probably not cover them in full.
Within 7 days from issuance of the judgment (which is done by the court orally), a party may request a written justification. When the justification is delivered the party has 14 days to file an appeal in writing (with a copy for the other party, which is then delivered by the court). There is no consent or leave required to file an appeal; it is the right of every party in every case.
The procedure before the second-instance court is similar to the procedure before the court of first instance, with the difference that the court only hears additional evidence (if any) which for justified reasons was not introduced at the first instance, and there is usually only one hearing.
The judgment of the court of second instance is final. But extraordinary review may be available (if the amount in dispute is at least PLN 10,000), in the form of a cassation appeal from the second-instance judgment to the Supreme Court of Poland. However, such review can be based only on narrow and exclusively listed grounds. This means for example that the facts of the case established by the second-instance court cannot be questioned. Cassation appeals are relatively rarely considered.
Magdalena Świtajska, adwokat, Employment practice and Global Mobility practice, Wardyński & Partners