In the Labor Code we find provisions relating to the state of readiness to work. These regulations refer to specific situations in which an employee does not perform work for the employer, while receiving remuneration. What does the state of readiness for work mean? What conditions should be met to reasonably talk about the state of readiness to work and to be entitled to the appropriate remuneration?
According to the provisions of the labor law, an employee is entitled to remuneration for work done. One of the exceptions to this rule, provided for in the labor code, is the norm of article 81 § 1 of the labor code. According to this provision, an employee is entitled to remuneration for the time of non-performance of work if he was ready to do it but suffered obstacles for reasons related to the employer. This remuneration is based on the personal classification, specified by hourly or monthly rate, and if such a remuneration component has not been singled out when determining the conditions of remuneration, the rate is 60% of the remuneration. In each case the remuneration cannot be lower than the minimum wage for work established on the basis of separate regulations.
For the employee to be entitled to remuneration referred to in Article 81 § 1 of the Labour Code, two conditions must be met:
– readiness to perform work on the part of the employee,
– obstacles in performing work by an employee for reasons related to the employer.
It is assumed that the characteristics of the readiness of the employee to perform work are:
– intention to perform work – understood as a real desire to provide work by the employee;
– actual ability to perform work by the employee – understood as a full physical and mental ability to perform work duties;
– externalisation of readiness to work – understood as causing the employer to know that the employee is ready to work. The notification of readiness to work may be made by any behavior of the employee that sufficiently manifests his/her intention to perform work or continue the employment relationship. In the given circumstances of the case, a single manifestation of the employee’s readiness to work may be insufficient and it will be necessary to make such manifestation periodically or systematically;
– being at the employer’s disposal – understood as a state in which the employee can immediately, at the employer’s call, start work.
The above mentioned prerequisites must be fulfilled jointly, as only as a whole they illustrate a real readiness to provide work.
OBSTACLES TO PERFORMING WORK FOR REASONS RELATED TO THE EMPLOYER
The second condition for the employee to be entitled to remuneration under article 81 § 1 of the Polish Civil Code is being prevented from performing work by the employer.
Reasons concerning the employer may be dependent or independent. They can be behaviors of the employer – including persons acting on his behalf, third parties such as other employees as well as force majeure events. The legislator has shaped the employee’s right to remuneration for his readiness to work in a wide way, transferring the risk connected with the inability to provide the employee with work in accordance with the provisions of the employment contract onto the employer. Only the existence of a reason relating to the employee excludes the application of Article 81 § 1 of the Labour Code.
The most common reason for not allowing the employee to work is the employer’s erroneous belief that the employment relationship has ceased or does not exist. The situation of misconception about the termination of the employment relationship occurs, among others, when the employer considered that the employment contract was terminated at the end of the term for which it was concluded when in fact such a contract was transformed into a contract for an indefinite period of time due to the wrongful employment of the employee for a period exceeding 33 months or conclusion of the fourth contract for a definite period of time with the employee. In turn, the second situation (mistaken belief that there is no contract of employment) may occur, inter alia, when there was a contract of employment between the parties – making declarations of will, the employee nevertheless did not come to work, and the employer did not terminate such a contract of employment, because he mistakenly believed that due to the failure to come to work the employment relationship was not established at all.
If the above conditions are fulfilled, the employee is entitled to the remuneration resulting from his personal classification determined by hourly or monthly rate, and if such a remuneration component has not been singled out when determining the conditions of remuneration, then it is 60% of the remuneration. In each case, however, the remuneration cannot be lower than the amount of the minimum wage, determined pursuant to separate regulations.
The provision uses the term „personal classification rate”, however, it does not define this term. The most recent jurisprudence assumes that by sta