Praca i Zabezpieczenie Społeczne (Work and Social Security) 2020/02
Category: Praca i Zabezpieczenie Społeczne
Published: Monday, 09 March 2020 12:18
Written by Editor
- Wisthleblowing at the workplace in the light of the new Directive 2019/1937 of the European Parliament and of the Council (EU) on the protection of persons reporting violations of Union law (3-11)
The author discusses the provisions of the so-called whistleblower directive, i.e. Directive 2019/1937 of the European Parliament and of the Council of 23 October 2019 on the protection of persons reporting violations of Union law, which introduce new uniform rules for the protection of whistleblowers in the workplace across the EU. The directive imposes an obligation on Member States to develop and introduce harmonized regulations regarding the method of accepting notifications, conducting investigations and the legal protection of whistleblowers. It also requires the implementation of anonymous reporting channels, informing the whistleblower about the actions taken as a result of the notification, and introduces a three-month deadline for making a decision as a result of the explanatory proceedings. It also provides for the obligation to protect the personal data of all participants in the investigation. The new directive prohibits any retaliation against whistleblowers by ordering effective and adequate measures to protect them.
- A fresh view of the CJEU on the Charter of Fundamental Rights of the European Union (12-17)
The author discusses the rulings of the Court of Justice of the European Union in which he pointed to the direct application of Art. 21, art. 31 section 2 and art. 47 EU Charter of Fundamental Rights (Egenberger, IR v JQ, Bauer and Max Planck judgments). It draws attention to the limited significance of this case-law due to the fact that it maintains the arguments contained in the AMS decision that where there is a reference to "national law and practices" in the Charter's record, such a record makes it impossible to apply the Charter directly. According to the author, the effect of the case-law indicating the direct application of the Charter also depends on the number and quality of questions referred for a preliminary ruling by courts from a given country.
- Capital company management contract and contractual liability of a manager-board member towards third parties (18-27)
The considerations contained in the article are devoted to the contractual liability of a member of the management board of a capital company in connection with the introduction to the managerial contract of a provision according to which the manager is liable to third parties for damages resulting from non-performance or improper performance of obligations arising from this contract. According to the author, the above-mentioned provision of the managerial contract does not result in the liability for third parties to the manager-member of the board, not the company. By this provision, the company is not released from liability towards third parties and this responsibility is not transferred to the manager-member of the management board of a capital company.
- Employment of an employee-creator of a computer program in the form of telework (28-35)
The subject of the article is the issue of employing a programmer in the form of telework, which due to its cross-sectional nature should be interpreted taking into account both labor law and copyright law. In relation to the specifics of creative work and the possibility of performing it at a distance, the author discusses problems related to the employment of employees in the form of telework, in particular: time and place of work, regularity of its provision and subordination of the programmer and his control by the employer. It also refers to the issue of using the employee's private equipment and doubts regarding the payment of the equivalent arising therefrom. The author points out the problematic spheres occurring during the programmer's teleworking, proposing their possible practical solutions.
- The consequences of exceeding the maximum period of temporary work in the jurisprudence of the Supreme Court (36-41)
The article deals with the issue of exceeding the maximum period of temporary work. The author analyzes the jurisprudence of the Supreme Court regarding the purpose of art. 20 of the Act of July 9, 2003 on employment of temporary employees and implied employment relationship between the user employer and the temporary employee in the context of the temporary work model in force in Poland.
- Termination of employment of aircraft pilots at the age of 60 and discrimination on grounds of age (42-44)
In its judgment of 7 November 2019 in Case C-396/18, Gennaro Cafaro v DQ, the EU Court of Justice dealt with age discrimination in the context of Italian legislation providing that aircraft pilots may only carry out their professional activities until at the age of 60.
- The concept of the basic obligation of an employee (Article 52 § 1 item 1 of the Code of Civil Procedure) (45-47)
The author extensively refers to the case law, including the latest judicature of the Supreme Court, regarding the interpretation of the term 'basic employee obligation' within the meaning of Art. 52 § 1 point 1 of the Code of Civil Procedure
- Cash severance pay (49-49)
- New recipes (50-52)
Review of Journal of Laws for 2020 from item 1 to item 150
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