A year has passed since the new civil procedure regulations took force. Their purpose was to accelerate court proceedings, encourage parties to seek amicable solutions and impose an obligation on parties and their attorneys to collaborate in the organization of proceedings.

Preparatory sessions, hearing schedules, written witness testimonies and advising the parties of the likely outcome of their case were among the measures anticipated to serve this purpose. In employee-related cases, the likelihood of reinstating an employee even before the judgment of the court of first instance becomes final and binding has been increased.

How do these institutions function in practice? Some of them have not gained recognition in labour courts, while the popularity of others continues to grow. Among the reasons for this, at least in part, is the ongoing COVID-19 pandemic.  

In the judge’s office 
 

The amended regulations indicate that scheduling a preparatory session should become the rule. During such a session, the judge’s duty is to encourage the parties to reach a settlement to end the dispute without having to hold any subsequent hearings (Article 2055 § 1 of the Code of Civil Procedure). The judge ought to seek a resolution to the conflict together with the parties in a more informal setting, preferably outside the courtroom. The parties and their attorneys should participate in the session. 

So far, preparatory sessions are rarely held. Perhaps, the underlying reason for this is that they are too complicated. Or perhaps, it is too difficult for judges to act as mediators? This is because the legislature requires them to make efforts going far beyond merely repeating aloud the previous standard statement: “I encourage the parties to reach a settlement”. Or perhaps the reason is that a visit to the judge’s office is perceived just as it has been to date, that is with a great deal of suspicion?

Like in an American movie 
 

If the preparatory session does not lead to a resolution of the dispute, a schedule of hearings is prepared with a decision as to evidentiary motions. Therein, the judge should specify the dates of hearings in a manner enabling the taking of all evidence, preferably during consecutive days. Accordingly, hearings in each case would be held day after day, like in the United States.

This idea, though seemingly a good one, does not fit with our domestic judicial reality. In courts in large urban centres, such as Warsaw, Wrocław and Poznań, where several hundred cases are pending at any given time in each department, the scheduling of hearings several months apart from each other is a result, among other things, of the need to take day-to-day procedural steps in all the cases. Constraints related to the scarcity of premises and human resources cannot be overlooked.  

In employee-related cases, a judgment in the court of first instance is usually issued no earlier than a year after filing, just as up till now. In cases requiring a large volume of evidence, waiting times may be much longer. Even if a schedule of hearings is prepared and hearings are slated to take place on consecutive days, the absence of a witness at a scheduled hearing is enough for the schedule to require modification, which in turn leads to the prolongation of proceedings.

‘Compelling’ an employer to re-hire someone
 

Following the completion of first-instance proceedings, the court, by declaring the termination of the employment contract ineffective or by reinstating the employee may, at the employee’s request, order the employer to re-hire the employee until a final and binding judgment is pronounced in the proceedings. This means that following two years of litigation, the employer may be forced to re-hire and retain an employee until the court of second instance decides whether or not the reinstatement judgment should be upheld.

Usually, this will last from several months to more than a year during which the employer will have to arrange work for the employee and pay his or her remuneration even though the employee’s claim may eventually be dismissed.  

Before the legislative amendment, the court of first instance had the power to impose an obligation on the employer to continue the employment relationship only if the termination of the employment contract was found to be ineffective. Accordingly, a judgment had to be handed down before the lapse of the notice period. In practice, such situations never happened. As a result of the amendment, this power of the court has also been extended to include judgments resulting in the reinstatement of employees. Therefore, employers have to take into account the authentic risk of having to re-hire an employee even though litigation is still pending. 

Good writing skills instead of oratorial skills 
 

Before the pandemic, judges rarely took advantage of written witness testimonies. Currently, due to health and epidemiological restrictions, they are used in employee-related cases on a massive scale. Despite the obvious advantages of this institution, resulting in accelerating the proceedings and avoiding the scheduling of subsequent hearings, this approach may open the floodgates for abuse.

The greater the shift from oral to written testimonies, even involving key witnesses, the greater the accompanying risk. This is because it is virtually impossible to verify the credibility of written testimonies. In particular, they rule out the possibility of cross-examination or observing the behaviour of witnesses. They also make it impossible to ask witnesses ad hoc questions about the circumstances of the case or clarifying any uncertainties on the spot. There is also a serious risk that written testimonies may have been prepared with the participation of third parties.

In employee-related cases, witnesses provide the main body of evidence. The holding of a written hearing of a dozen or so witnesses requires the parties to prepare literally hundreds of questions anticipating multiple scenarios and then compare statements with each other, sometimes consisting of 100 or more pages. 

This is how I see it
 

One revolutionary solution would seem to be the possibility of advising the parties of the likely outcome of their case. The presiding judge could do this at any court session. This would enable the party in question to consider the justification for pursuing his or her claims and the validity of his or her petitions. When an employee acting as a plaintiff learns that his or her position in the proceedings is weaker than that of the employer as the defendant, he or she would be more likely to retract his or her statement of claim or be more willing to reach a settlement. If the judge assesses the employer’s odds of winning as being lower, then the employer would be able to make a decision on withdrawing certain evidence or paying the amount sought by the employee under a settlement to save time and resources. 

Unfortunately, in the court cases we have pursued thus far, we have not yet encountered a situation in which the court elected to share its views on the outcome of a case with the parties before pronouncing judgment.

More articles in the PRO HR Year Book 2020.