The employee’s attorney says: “he has already sent his notice of termination". No letter has reached the company. The employee has not shown up for work for two days, and the signed disciplinary dismissal letter is lying on the desk. Should you hold off?
This is precisely where employers most often lose their cases—not because of the substance of the allegations, but because of the calendar. The mistaken belief that “the employee is leaving anyway" leads employers to abandon disciplinary dismissal, lose the appropriate method of terminating the employment contract, issue an unfavourable employment certificate, and weaken their position when pursuing damages.
This article examines three mechanisms that determine the outcome and cannot be remedied after the fact:
- Which takes precedence when both statements—the employee’s notice of termination and the employer’s disciplinary dismissal—coincide.
- How the one-month period under Article 52 § 2 of the Labour Code is actually calculated—separately for each allegation, from the moment the authorised person becomes aware of it until the letter reaches the employee.
- How to serve the statement on an employee who does not come to work or answer the phone.
At the end, you will find a checklist divided into five sections: deadline, content, trade union, service, damages and next steps.
Terms you need to know
Before we go any further, let us explain several terms used throughout this article.
| Term | Meaning |
|---|---|
| Disciplinary dismissal (Article 52 § 1 point 1 of the Labour Code) | Termination of an employment contract without notice due to the employee’s fault—effective immediately upon service of the statement |
| Time limit under Article 52 § 2 of the Labour Code | One month from the employer becoming aware of the circumstance justifying disciplinary dismissal—a substantive-law deadline that cannot be reinstated |
| Authorised person (Article 31 of the Labour Code) | The person or governing body that performs employment-law actions on behalf of the employer—the one-month period is calculated from when that person or body becomes aware of the matter |
| Trade union consultation (Article 52 § 3 of the Labour Code) | The obligation to notify the workplace trade union before serving the disciplinary dismissal—3 days to raise objections |
| Article 61 of the Civil Code in conjunction with Article 300 of the Labour Code | A declaration of intent is made when it reaches the recipient in a manner that enables them to become acquainted with its contents—receipt, not dispatch, is what matters |
| Written form (Article 30 § 3 of the Labour Code) | A handwritten signature or qualified electronic signature—a scan, a PDF without a qualified signature, or an ordinary email is insufficient |
An employee’s notice of termination does not prevent disciplinary dismissal by the employer
A notice of termination submitted by an employee does not end the employment relationship. It initiates its termination at a future date—when the notice period expires. Until then, the employer retains the full right to terminate the contract without notice due to the employee’s fault.
When both statements coincide, the contract is terminated in the manner and on the date specified by the employer’s statement. A disciplinary dismissal takes effect immediately—upon service. The employee’s notice of termination becomes moot because there is no longer a contract to terminate. The employment certificate should refer to Article 52 § 1 point 1 of the Labour Code, not to termination by notice (Supreme Court II PK 215/18, Supreme Court II PZ 9/19).
The reverse scenario is equally important: if the notice period expires before your statement reaches the employee, the disciplinary dismissal has no effect. You cannot terminate a contract that has already ended.
Therefore, information from the employee’s attorney that “the notice of termination has been sent" does not constitute a declaration of intent. Until the letter reaches the employer (Article 61 of the Civil Code in conjunction with Article 300 of the Labour Code), it is merely an announcement. You must not use it as a basis for putting the disciplinary dismissal on hold—on the contrary, it should prompt you to act faster.
What to check before making a decision
| Question | If YES | If NO |
|---|---|---|
| Has the employee’s notice of termination physically reached the employer? | Check the date on which the notice period expires—this is your final deadline for serving the disciplinary dismissal | You only have an announcement—speed up the process |
| Has the notice period already expired? | Disciplinary dismissal is no longer possible—the contract has ended | Act—the employment relationship is still in effect |
| Do you have grounds that meet the criteria under Article 52 § 1 point 1 of the Labour Code? | Prepare the statement and a service schedule | Consider whether disciplinary dismissal makes business sense |
Contact us—if the matter is already underway, every day counts.
How the one-month period under Article 52 § 2 of the Labour Code is actually calculated
The time limit under Article 52 § 2 of the Labour Code is a substantive-law deadline that cannot be reinstated. Missing it is in itself enough to make the termination unlawful—even if the reason was entirely true and serious (Supreme Court I PK 183/16).
When the one-month period begins
The time limit begins when the person or governing body authorised to perform employment-law actions becomes aware of the matter (Article 31 of the Labour Code). It does not begin with the first suspicion of just any employee. Nor does it begin when an external service provider notices something.
If an internal investigation is conducted efficiently and promptly, the time limit may begin when it is completed. But prolonging it “to be on the safe side" works against the employer—the court will assess whether the investigation was conducted without undue delay (Supreme Court I PK 183/16).
Each reason has its own time limit
Where there are several independent allegations, the court examines whether each of them fell within the one-month period, calculated from the date the employer became aware of the specific conduct. The oldest allegation may be time-barred while the others are not.
Continuous breaches and a series of actions
| Type of breach | When the time limit begins |
|---|---|
| Single incident | When the authorised person becomes aware of it |
| Series of separate actions (e.g. successive operations in a system) | Separately for each incident, unless they constitute a single continuous act |
| Continuous act (similar nature, close proximity in time, same opportunity) | From the last incident in the series (Supreme Court II PK 80/16) |
| Ongoing state of affairs (the unlawful situation persists over time) | The time limit does not begin while the situation persists |
Becoming aware of the damage is not the same as becoming aware of the breach
Anyone who waits for a final calculation of the damage before proceeding with disciplinary dismissal loses the ability to dismiss the employee on disciplinary grounds. The calculation is needed for a demand for payment and a lawsuit—not for the statement terminating the contract.
Working backwards—how many days you have
The one-month period under Article 52 § 2 of the Labour Code concerns the statement reaching the employee, not its preparation or dispatch. Work backwards from the deadline:
| Stage | How many days it takes | What you need to do |
|---|---|---|
| Trade union consultation | 3 days | Notify the organisation and wait or obtain an earlier response |
| Service (in person + registered letter) | 1–2 days | Prepare three parallel methods of service |
| Contingency for complications | 2–3 days | Employee absent, refusal to accept, outdated address |
As a result, you have approximately twenty-something days to prepare the statement, not thirty.
How to serve the statement on an employee who does not come to work
The employer’s statement is made when it reaches the employee in a manner that enables them to become acquainted with its contents (Article 61 § 1 of the Civil Code in conjunction with Article 300 of the Labour Code; Supreme Court I PKN 369/98). A delivery notice alone does not disclose the contents and is not equivalent to service. Two properly issued delivery notices create a factual presumption that the employee had an opportunity to become acquainted with the statement—but that presumption can be rebutted (Supreme Court II PSKP 112/21).
Three parallel methods of service
Arrange service through three channels on the same day:
| Channel | Method | What to watch out for |
|---|---|---|
| 1. Personal delivery | Two people (at least one authorised under Article 31 of the Labour Code) at the residential address recorded in the personnel file | Prepare an internal memorandum regardless of how the visit proceeds |
| 2. Priority registered letter with acknowledgement of receipt | Send it on the same day to the correspondence address in the file | If the one-month deadline is approaching, sending a registered letter alone is not enough—the two-week deemed-service rule under the Code of Civil Procedure does not automatically apply to Article 61 of the Civil Code (Supreme Court III PSKP 14/23) |
| 3. Email with a qualified electronic signature | Only if the personnel file contains the employee’s consent to contact via their private email address | An ordinary email, scan, or PDF without a qualified signature does not satisfy the written-form requirement (position of the National Labour Inspectorate) |
Refusal to accept does not invalidate service
Deliberately failing to collect a letter despite having a genuine opportunity to do so may be deemed effective service (Supreme Court II PK 15/19). The same applies to refusing to accept a document during an attempt at personal delivery—the employee had an opportunity to become acquainted with its contents. The refusal must be recorded in an internal memorandum.
Internal memorandum on an attempted delivery—suggested contents
A memorandum from the visit may prove more important in court proceedings than the letter itself. Complete it regardless of what happens:
- Date and time of the visit
- Address (consistent with the personnel file)
- Participants representing the employer (full names, positions, authorisation)
- Course of events: whether the employee was present, whether they opened the door, and whether they accepted the letter
- In the event of refusal: exactly what was communicated and in what form
- Signatures of the participants
Content of the statement—what determines whether you lose or win in court
The court examines only the reasons stated in the statement. They cannot be supplemented during the proceedings. A statement that is too brief is more dangerous than one that is too detailed (SAOS IX P 33/18).
An analysis of labour court judgments reveals recurring reasons why employers lose cases (SAOS IV P 677/21, SAOS VII P 750/20):
| Reason for losing | What went wrong |
|---|---|
| Failure to demonstrate a “serious" breach | The employer described the breach but did not explain why it was serious |
| Insufficient proof of the facts | No evidence supporting the circumstances stated in the statement |
| Missing the deadline under Article 52 § 2 of the Labour Code | Waiting for a calculation of the damage or prolonging the internal investigation |
| No specific reason | “Loss of trust" or “acting to the employer’s detriment" without describing the conduct |
| Failure to advise the employee of the right to appeal | The employee had the deadline reinstated and the dispute was “revived" months later |
How to structure the justification
Draft the statement as a set of independent allegations. If one fails, the others do not necessarily fail with it. Each allegation should have three layers:
- Legal classification—the duty breached, with reference to a specific provision of Article 100 of the Labour Code
- Facts—what happened, when, using what tool, over what period, and based on what evidence
- Argument—why the breach is serious in the context of the employee’s position and responsibilities
“Loss of trust"—a conclusion, not a reason
Present loss of trust as the concluding inference, linked to the nature of the position: independence, lack of ongoing supervision, and access to a tool allowing financial liabilities to be incurred. Never present it as the primary and independent reason.
Address the known line of defence
If you know what defence the employee may raise, address it in the statement. For example: one-off consent to perform a single action cannot reasonably be interpreted as general authorisation to perform the same type of action repeatedly and independently. The very fact that the employee considered it necessary to request consent proves that they were aware that the action fell outside the scope of their assigned duties.
Form and additional elements
Before the document leaves the office, supplement the justification with:
- Advice on the right to appeal to the labour court—21 days from service, with the competent court identified (Article 30 § 5 and Article 264 § 2 of the Labour Code)
- Legal basis—Article 52 § 1 point 1 of the Labour Code
- List of attachments
- Signature of a person authorised under Article 31 of the Labour Code—a handwritten signature or qualified electronic signature
Failure to provide advice is grounds for reinstating the deadline to appeal (Article 265 of the Labour Code)—the dispute may be “revived" many months later.
Trade union consultation—3 days that shorten your one-month period
Before serving the disciplinary dismissal, you must notify the workplace trade union representing the employee (Article 52 § 3 of the Labour Code). The organisation has 3 days to raise objections. Its opinion is not binding on the employer, but omitting the consultation is an independent basis for claims—regardless of how strong the grounds for dismissal are.
What to check before service
| Question | Consequence |
|---|---|
| Is there a workplace trade union at the company? | If not—consultation is not required |
| Does it represent this employee? | Ask the organisation—the employee is not required to inform you of their membership |
| Is the employee a trade union officer covered by special protection (Article 32 of the Trade Unions Act)? | Consent, not an opinion, is required—lack of consent prevents disciplinary dismissal |
Ask at the preparation stage, not on the day of service.
Disciplinary dismissal and pursuing damages—two separate matters
Disciplinary dismissal does not prevent the employer from seeking compensation for damage—including damage quantified at a later date. An agreement containing a waiver of claims does.
The classification of fault determines the extent of liability
| Type of fault | Extent of liability | Legal basis |
|---|---|---|
| Intentional | Full amount of the damage—no limit | Article 122 of the Labour Code |
| Unintentional | Actual loss, up to 3 months’ remuneration | Articles 114–119 of the Labour Code |
Determine the classification of fault based on the facts, not on the terminology used in correspondence. An incorrect classification (unintentional rather than intentional fault) means irretrievably losing the claim for the full amount of the damage.
Deductions from remuneration—limitations
A deduction requires the employee’s written consent relating to a known and specifically quantified amount (Article 91 of the Labour Code). Blanket consent is not valid consent. Compensation for unused annual leave is subject to the same restrictions on deductions—the protected amount is the minimum wage after deductions (consolidated text of the Labour Code, Journal of Laws of 2025, item 277).
Do not sign an agreement before determining the full extent of the damage
When speaking with the employee’s attorney, it is enough to acknowledge the proposal and state that the verification is ongoing. A premature agreement containing a waiver of claims prevents you from pursuing any difference discovered during further verification.
The employee does not speak Polish—a bilingual document as a safeguard
The Labour Code does not require the document to be prepared in a foreign language—the Polish version remains binding. However, preparing a complete bilingual document (with Polish as the binding version) removes the argument that the employee did not understand its contents or missed the deadline to appeal as a result.
Lack of language proficiency may be considered when assessing whether the employee was not at fault in missing the appeal deadline (Article 265 of the Labour Code)—the court considers the following factors together: level of language proficiency, method of service, ability to obtain a translation, and response time after the obstacle ceased to exist (consolidated text of the Labour Code, Journal of Laws of 2025, item 277).
Translating the legal classification—including references to specific provisions of the Labour Code—is a task for a lawyer, not the HR department. Any shift in meaning may later be raised as an allegation that the reason was insufficiently specific.
Preserving evidence—before you disable access
Employers often block access to systems “reflexively", before exporting the data—and lose some of the evidence. System logs and account identifiers constitute personal data if they make it possible to attribute activity to a specific person. Processing them for the purposes of an internal investigation may be based on Article 6(1)(f) of the GDPR (legitimate interest) after conducting a balancing test (position of the Polish Data Protection Authority).
Order of actions
- Export data from the system: accounting documents, confirmations of charges to the account, system records together with the employee’s account identifier, and correspondence
- Mark the export with the date it was performed and identify the person who performed it
- Apply the data minimisation principle—download what relates to the case, not the entire account history
- Only then disable access
- Retain documentation confirming the basis and scope of the processing
When disciplinary dismissal does not make sense—a business decision
Disciplinary dismissal is an option, not an obligation. In the case of a fixed-term contract expiring in a few weeks and no interest in pursuing damages, it may generate litigation risk without any real benefit.
| Factor | Supports disciplinary dismissal | Weighs AGAINST it |
|---|---|---|
| Intention to pursue damages | Yes—disciplinary dismissal strengthens your position | No—an agreement may be simpler |
| Message to the team | Yes—sets a clear boundary for the remaining employees | No—if the matter is not known within the organisation |
| Employment certificate | Yes—in industries where it matters | No—if the employee is moving to a different industry |
| Litigation risk | Low—with well-prepared documentation | High—where the evidence is questionable or the deadline is approaching |
| Cost of losing (fixed-term contract) | Compensation for up to 3 months (Article 58 of the Labour Code) | Litigation costs + time spent by HR and management |
Checklist before serving a disciplinary dismissal
Section 1: deadline
- Determine and record the date on which the information was obtained SEPARATELY for each reason
- Identify the person or governing body authorised under Article 31 of the Labour Code that obtained the information
- Calculate the date on which the one-month period expires—allow 3 days for trade union consultation and time for service
- Complete the internal investigation without delay—do not wait for the damage calculation
Section 2: content
- Draft the statement as a set of independent allegations (legal classification + facts + argument)
- State the date and circumstances in which the employer learned of the breaches—separately for each reason
- Present loss of trust as a conclusion, not a reason
- Address the employee’s known line of defence
- Include advice on the right to appeal (21 days, competent court)
- Check the signature—a person authorised under Article 31 of the Labour Code, with a handwritten or qualified electronic signature
Section 3: trade union
- Check whether there is a workplace trade union and whether it represents the employee
- Verify whether the employee is a trade union officer covered by special protection (Article 32 of the Trade Unions Act)
- Notify the organisation and wait 3 days or obtain an earlier response
Section 4: service
- Prepare three parallel channels: personal delivery, priority registered letter with acknowledgement of receipt, and email with a qualified signature (if consent is in the file)
- Prepare an internal memorandum on the attempted delivery—complete it regardless of what happens
- Verify that the address in the personnel file is current
Section 5: damage and next steps
- Preserve evidence BEFORE disabling access
- Do not sign an agreement before determining the full extent of the damage
- Determine the classification of fault (intentional vs. unintentional)—this determines the extent of liability
- Issue an employment certificate referring to Article 52 § 1 point 1 of the Labour Code
- Postpone the decision on notifying the public prosecutor’s office until the facts have been established
Disciplinary dismissal is a race against the calendar—prepare before the clock starts
Employers lose disciplinary dismissal cases not because the reason was untrue, but because they ran out of days. The one-month period under Article 52 § 2 of the Labour Code shrinks to twenty-something days once the trade union consultation and time for service are deducted. Every day of delay—waiting for a calculation of the damage, prolonging the internal investigation, or holding off based on an announcement that notice has been sent—brings you closer to the point when disciplinary dismissal is no longer possible.
If the matter is already underway—or you want to prepare your company for such a situation before it arises—contact us. We will prepare a schedule calculated backwards from the deadline under Article 52 § 2 of the Labour Code, review the statement, and guide you through service and trade union consultation. With disciplinary dismissal, every day counts.
Frequently asked questions
The employee has submitted notice of termination—can I still dismiss them on disciplinary grounds?
Yes, as long as the employment relationship continues—that is, until the notice period expires. Notice initiates the termination of the contract at a future date, but it does not deprive the employer of the right under Article 52 § 1 point 1 of the Labour Code. If your statement reaches the employee before the notice period expires, the contract is terminated by disciplinary dismissal and the notice becomes moot.
What if the employee’s attorney says that the notice “has been sent", but we have received nothing?
Oral information from the attorney is an announcement, not a declaration of intent. The declaration is made only when it reaches the employer in a manner that enables the employer to become acquainted with its contents (Article 61 of the Civil Code). Do not put the disciplinary dismissal on hold—on the contrary, act faster. Every day of delay brings you closer to the point when the notice period expires and disciplinary dismissal is no longer possible.
Do I have to wait for the damage to be calculated before serving the disciplinary dismissal?
No. Becoming aware of the extent of the damage is not the same as becoming aware of the circumstance justifying termination of the contract. The calculation is needed for a demand for payment and a potential lawsuit—not for the statement terminating the contract. Waiting for final calculations before proceeding with disciplinary dismissal creates a risk of missing the one-month deadline under Article 52 § 2 of the Labour Code.
Can I send the disciplinary dismissal as a PDF to the employee’s private email address?
The written form required by Article 30 § 3 of the Labour Code calls for a handwritten signature or qualified electronic signature. An ordinary email, a scan bearing a handwritten signature, or a PDF without a qualified signature does not meet this requirement. If the personnel file contains the employee’s consent to contact via their private email address, you may send a statement bearing a qualified electronic signature—but treat this as an additional method of service, not the only one.
The employee refused to accept the letter during an attempt at personal delivery. What now?
Refusal to accept does not invalidate service—the employee had an opportunity to become acquainted with the contents. Prepare a detailed internal memorandum describing the visit (date, time, address, participants, course of events, and the refusal). At the same time, send a priority registered letter with acknowledgement of receipt to the address in the personnel file.
Is “loss of trust" sufficient as a reason for disciplinary dismissal?
Not as an independent reason. Loss of trust operates solely as a consequence of the conduct described and must be linked to the nature of the position. You must first describe the specific breaches—what happened, when, and how—and then present the loss of trust as a conclusion arising from that conduct, taking into account the independence of the position and the scope of the employee’s responsibilities.
