The labour court may reinstate an employee if it is found that he/she was wrongfully dismissed. However, a judgment reinstating an employee does not cause his/her automatic reemployment.

As a condition for the judgment to be effective, the employee must report his/her readiness to work. In this article, we discuss issues related to an employee's return to work after a reinstatement judgment.  

Necessity to report readiness to work 
 

The employer is obliged to reinstate the employee as a result of the judgment reinstating him/her. If the employee has filed an appropriate request, the court may order the employer to “temporarily reinstate” him/her, i.e. until the second-instance court decides whether the reinstatement judgment is correct. In the absence of such a request, as a rule, it is only as a result of the announcement of the judgment by the appellate court that the employee can return to work. The employee's reinstatement is not automatic.  The effectiveness of the reinstatement judgment depends on the employee's notification of his/her willingness to work immediately. The employee has 7 days to do so after the judgment becomes final. 

Ineffective notification of readiness to work
 

In a situation where an employee fails to report readiness to work or reports readiness to work before the judgment becomes final, or after the 7-day deadline, such action is ineffective. If the employer refuses to rehire the employee, the reinstatement judgment will have no effect. 

As an exception, however, the employee will be allowed to return to work if he/she demonstrates that the missed deadline for reporting readiness to work was for reasons beyond his/her control. It is often a matter of dispute whether or not the employee missed the deadline for reasons beyond his/her control. If the employer refuses to rehire the employee, the employee can demand a determination that the delay was due to reasons beyond the employee's control. The Supreme Court's line of rulings recognizes, for example, the failure of an attorney of record to notify an employee of the reinstatement judgment as a cause beyond the employee's control (see Supreme Court judgment of 14 January 2008, II PK 104/07).

Enforcement of a reinstatement judgment
 

If the employer refuses to reemploy the employee, despite the fact that he/she reported his/her readiness to work within the prescribed period, the employee may request the enforcement of non-monetary benefits (Article 1050 of the Code of Civil Procedure). The court may impose a fine or order payment to the employee of a certain sum of money for each day of delay to force the employer to comply with the judgment. 

When imposing a fine, the court, in the event of non-payment, orders the conversion of the fine into detention. Coercive measures are imposed on the employee responsible for the failure to comply with the court demand, and if it is difficult to determine such an employee - persons authorized to represent the employer. 

The employer can defend against enforcement by bringing an action against the employee to render the judgment reinstating the employee unenforceable. At the same time as the lawsuit, the employer should file a motion to suspend the aforementioned enforcement proceedings, if initiated by the employee.

In an anti-enforcement proceeding, for example, the employer can prove that the employee did not effectively report his/her readiness to work. If the claim is upheld, the court will render the judgment unenforceable, and thus the employee will not be able to demand that the employer execute the obligation to reinstate him/her. 

Criminal liability of the employer 
 

An employer who fails to implement a final reinstatement judgment commits an offense against the rights of the employee. It faces a fine of between PLN 1,000 and PLN 30,000 (Article 282 § 2 of the Labour Code).

Refusal to comply with a court order can also be classified as a crime under Article 218 § 2 of the Criminal Code. It is punishable by a fine, restriction of freedom or imprisonment for up to a year.

Pay for the time of readiness to work
 

An employee whom the employer has not allowed to work, despite notification of his/her readiness to work, is entitled to remuneration for the time of readiness to work. An employee claiming such remuneration must prove before the court that he/she was ready to work and could not do so for reasons attributable to the employer. In practice, this can be a significant financial burden for an employer who has unjustifiably evaded compliance with a judgment reinstating an employee and waited for the court’s ruling. Such disputes, aiming to assess whether the employer had a duty to allow the employee to work, can take about two years. The consequence of the court's finding that such an obligation existed may be an award of remuneration to the employee for the entire period of not allowing him/her to work.