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“Fiction of service” upon termination of employment by post – ineffective during the pandemic

Due to the coronavirus pandemic, employers hiring employees are currently operating in quite unpredictable times, where long-term planning and ensuring continuity of employment for employees can often be difficult. Government assistance is not always sufficient, as a result of which employers are often forced to reduce employment in their companies. During a pandemic, employers who decide to take such a step may also find the method of giving the notice to the employee problematic.

The notice of termination is deemed delivered if the employee had the opportunity to become familiar with the content of the document. It does not follow from the above that the termination notice must be delivered personally, but only delivered in such a way that it is possible to read the termination notice. Until now, such a document could be handed over to an employee in 4 ways:

  • in person – giving the notice of termination in writing by the employer or a person representing the employer,
  • by post (registered mail) – sending a work certificate by post by registered letter with acknowledgment of receipt,
  • by courier,
  • by e-mail – the termination notice may be sent to the employee’s e-mail account. The document must bear a qualified electronic signature. It is best if the e-mail also includes instructions to open the file and verify the correctness of the electronic signature for the employee.

During the pandemic, many regulations were changed under the Anti-Crisis Shields. One of the amended regulations were the provisions on the delivery of postal items, which were included in the Shield 2.0 (Act of April 16, 2020 on specific support instruments in connection with the spread of the SARS-CoV-2 virus, Journal of Laws of 2020, item 695) ).

Pursuant to the original provisions, the parcel was considered delivered on the day on which the deadline for the second notification expired.

The amended regulation in Art. 97 and 98 contain information that unclaimed letters subject to delivery with acknowledgment of receipt by the postal operator, the date of receipt of which specified in the advice note fell during the period of an epidemic threat or an epidemic, cannot be considered delivered during these states and within 14 days from the day these conditions were lifted. The exception to the above are letters concerning customs and fiscal inspections, tax proceedings if the inspections or proceedings are related to the suspicion of committing a crime, and letters sent to and by: courts, tribunals, prosecutor’s office and court bailiffs.

Employers often had to deal with a situation where an employee, expecting that a letter from the employer would terminate the employment contract, deliberately avoided receiving it. In the current legal situation, such a parcel may be considered delivered only after its actual delivery or by recognizing the fiction of delivery but significantly delayed in time. A way to avoid problems with the delivery of the notice may turn out to be sending the document by courier, which is generally delivered personally to the recipient, and if the employee does not want to accept such a parcel, the refusal to collect it will be noted by the courier.

If the employee refuses to accept the termination notice, it does not change the fact that the termination notice was successfully submitted by the employer and causes certain legal effects. It should be remembered that from this date the period is also counted during which the employee may appeal against the dismissal to the labor court.

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