Changing the Mode of Termination of an Employment Contract

Can an employer consider an employee’s request to change the mode of termination of an employment contract?

Labor law provides various possibilities for terminating an employment contract, usually initiated by the employer or employee. In some cases, both parties may agree on ending the cooperation. It also happens that the contract ends automatically due to the passage of time or other circumstances. But what happens when, after deciding to terminate the cooperation, the employee asks to change the mode of termination of the contract? Can the employer accept such a request? We will answer this question in the article below.

Modes of Terminating an Employment Contract

The Labor Code defines several ways of ending an employment relationship. These are:

• termination of the contract by mutual agreement,
• termination of the contract with notice by one of the parties,
• termination of the contract without notice by one of the parties.

In each case, the notice must be given in writing. If the employer terminates a contract for an indefinite period or without notice, justification for the decision is also required.

The Civil Code supplements the rules regarding the submission of declarations of intent in terms of termination. According to Article 61 § 1 of the Civil Code, a declaration of intent becomes effective when the other party has the opportunity to become familiar with its content. Withdrawal of this declaration is only possible if it reaches the addressee simultaneously with or before the original declaration is delivered.

Request to Change the Mode of Termination

The most common request regarding the change of the termination mode is when the employee proposes termination by mutual agreement. The case law of the Supreme Court confirms that such situations are common, though it does not exclude other employee requests.

Should the Employer Accept Such a Request?

The answer is: yes, but there is no obligation to do so. The employer has the right to reject the proposal, especially when termination in the manner preferred by the employee could disrupt the company’s operation. An example might be the sudden dismissal of a key employee, causing difficulties in maintaining the continuity of work.

The Principle of Employee Privilege

The Labor Code and Supreme Court case law introduce the so-called principle of employee privilege. This means that the employer may offer a more favorable solution than those provided for by the regulations, as long as it does not violate the law. The decision to accept or reject the request lies solely with the employer.

Example from a Company

For example, a manager receives a job offer from another company and requests termination by mutual agreement, allowing them to start the new job sooner. However, the employer refuses, arguing that a replacement must first be found, which is difficult in the current job market. In this case, the employer proposes that the employee submit their resignation, observing the notice period, while also promising the possibility of early termination if a suitable replacement is found.

Supreme Court Judgment

It is worth noting that in the judgment of September 29, 1998 (I PKN 346/98, OSNP 1999/20/625), the Supreme Court confirmed that the employer’s consent to terminate an employment contract by mutual agreement, despite a previous unilateral declaration of termination without notice due to the employee’s fault, means that the previous declaration is withdrawn.

Summary

The employer may consider an employee’s request to change the mode of termination of the employment contract, applying the principle of employee privilege. However, there is no obligation to do so, especially if it would negatively affect the company’s operation. The employer’s decision should comply with labor law regulations and the organizational situation of the company.

Our accounting firm, FPD, can assist with all HR and payroll matters, providing full support in the termination of employment contracts.

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