A labour court may order the reinstatement of an employee if it is found that the employee was wrongfully dismissed. However, the ruling to reinstate the employee does not automatically mean the employee will be rehired. A key condition for the effectiveness of the ruling is that the employee must report their readiness to return to work.

In this article, we discuss issues related to the employee’s return to work following a reinstatement judgment.

Requirement to report a readiness to work

An employer is obliged to reinstate an employee after a court ruling reinstating them to their job. If the employee has submitted a relevant request, the court may order the employer to temporarily reinstate the employee until the second instance court decides whether the reinstatement judgment is valid. Without such a request, the employee can usually only return to work after the appellate court has announced its judgment. The reinstatement does not happen automatically. The effectiveness of the ruling depends on the employee reporting their readiness to return to work within seven days of the ruling becoming final.

Ineffective notification of readiness to work

If the employee does not report their readiness to return to work, or does so before the ruling becomes final or after the seven-day deadline, then the action is ineffective. If the employer refuses to rehire the employee, the reinstatement ruling will have no effect.

Exceptionally, the employee may return to work if they prove that the delay in reporting their readiness was due to reasons beyond their control. A common dispute is whether the employee missed the deadline due to their own fault. If the employer refuses to rehire the employee, the employee can request a ruling to establish that the delay was caused by reasons beyond their control. According to the Supreme Court’s case law, for instance, a failure to notify the employee about the reinstatement ruling by their legal representative can be considered a reason beyond the employee’s control (see Supreme Court ruling of 14 January 2008, II PK 104/07).

Enforcement of the reinstatement ruling

If the employer refuses to rehire the employee, despite them notifying readiness to work within the prescribed time, the employee can request the enforcement of non-monetary obligations (Article 1050 of the Polish Civil Procedure Code). The court may impose a fine or order the employer to pay the employee a specified sum for each day of delay, in order to compel the employer to comply with the ruling.

If the fine is not paid, the court may replace the fine with a custodial sentence. The penalty applies to the employee responsible for non-compliance with the court’s order, and if it is difficult to identify such an employee, the responsibility falls on those authorised to represent the employer.

The employer may defend themselves against enforcement by filing a lawsuit to have the reinstatement ruling declared unenforceable. At the same time, the employer should request the suspension of the enforcement proceedings, if the employee has already initiated them.

In the counter-enforcement proceedings, the employer could, for example, argue that the employee did not effectively report their readiness to work. If the court agrees, it will revoke the enforcement of the ruling, meaning the employee will not be able to demand that the employer reinstate them to their job.

Employer’s criminal liability

An employer who does not comply with a final ruling reinstating an employee commits an offence against the employee’s rights. They may be fined from PLN 1,000 to PLN 30,000 (Article 282 §2 of the Labour Code).

Refusing to comply with a court ruling may also be classified as a criminal offence under Article 218 §2 of the Criminal Code. This offence is punishable by a fine, the restriction of liberty or imprisonment for up to one year.

Salary for the period of a readiness to work

An employee whom the employer refuses to allow to return to work, despite reporting their readiness to do so, is entitled to compensation for the time while they were ready to work. The employee must prove in court that they were ready to work but were unable to perform their duties due to the employer’s actions.

In practice, this can create a significant financial burden for an employer who unjustifiably refused to implement the reinstatement ruling and waited for the court’s final decision. These disputes, aimed at assessing whether the employer was obliged to let the employee return to work, can last around two years. If the court finds that the employer had such an obligation, the employer may be ordered to pay the employee’s salary for the entire period they were not allowed to work.