One of the primary duties of the employee is conscientious and diligent execution of work. And also use the instructions of superiors. Provided that they relate to work. And they are not contrary to law or the content of the employment contract. This is reflected in Article 100a, Paragraph 1 of the Labour Code. With this general provision stemmed it is also an obligation to obey the instructions of the employer concerning work oversize. It is not in fact stored in the Labour Code directly. Refusal of such an order, however, is possible, but only in exceptional cases. An employee who too hastily say “no” to your employer, among others, may threaten release.
Only in special circumstances and …
Overtime work may be subcontracted only exceptionally, when they become justifying it and unforeseen earlier circumstances. There can therefore be pre-planned. That’s when I work overtime, or work carried out beyond an employee’s normal working hours, as well as work carried out over extended daily working time resulting from the current system of employee and working time is permissible – according to the Labour Code. They also specify the maximum size of such work, taking into account the need to provide employees with appropriate rest periods, as well as safe and hygienic working conditions.
… if the rules allow
In accordance with Article. 151 kp such work may be outsourced only if:
- requiring a rescue operation to protect the life or health of people, protect property or environment or removal of breakdown,
- the specific needs of the employer.
The first point hardly in doubt. It is about emergency situations and emergency such as fire, flood, other disasters and failures of machines and equipment. Such events can not be predicted and always require emergency action.
The second point the light is no longer. Always comes up because the question of what is meant by “the special needs of the employer.” The literature emphasizes that there can be a need arising from the normal, everyday operation of the company. In support to the judgment of 26 May 2000 (ref. No. Act I PKN 667/99; OSNP 2001/22/662) The Supreme Court emphasized that it is a need for special, unusual, distinct from the ordinary needs conducted by the employer activity. Whether such specific needs of the employer existed, but he decides employer or person acting on its behalf. Only in the event of a dispute before the court, this assessment will be subject to control by the labor court.
Command seems employer
If one of these conditions concerning the work overtime will be satisfied, the employer may give the employee a command to remain in the company after hours. A worker, as a rule, is required to perform this command. This is confirmed by Supreme Court judgment of 16 December 1987 (ref. No. I act PRN 68/87; OSNCP 1989-1910 pos. 164), in which the Supreme Court held that although overtime is performed in conditions of a particular already tired worker does not justify a refusal of the employee execute a command to remain outside of working hours in order to complete the removal of failure.
You do not always have to do everything
command overtime involves an employee not only when he was commissioned to work according to the agreed type, but also when he was commissioned to work another kind. However, this applies only work overtime, provided in the event of a rescue operation or troubleshooting. In such a situation, the employer may instruct the employee to perform virtually any job, even completely different from that provided by him every day. For example, in case of flooding and the threat of flooding archive may order office workers (eg. Accounting and human resources) packing and taking out a stored in the documentation.
An employer who has subcontracted to work overtime because of their special needs – has already less freedom. Although it can also instruct the employee to work departs somewhat from his normal duties, but it should always be within the specified contract type of work. This means that employers are not allowed to outsource such. Accounting work performed at the tape, and relying on packaging produced in company products.
Sometimes the refusal may be justified
As a rule, the employee should perform given to him by the employer command. However, there are situations in which it can be released from this obligation. And if you would for refusing such work punished, the court, which will consider the objection of disciplinary penalty or an appeal against the notice, or terminate the contract without notice certainly take into account the fact that the employer’s request was unlawful.
So when the employee can tell the employer “no” – without fear of victimization in this respect negative consequences?
First of all it can do when it is covered by the absolute prohibition of overtime. Absolute, ie, such that it is able to set aside even his consent. Such an absolute ban on overtime work involves: pregnant women (art. 178 par. 1 kp) and young employees (art. 203 of the Labour Code).
In contrast, a relative prohibition of overtime work includes employees caring for children for four years. Them, if they so agree, the employer can recommend to perform overtime work (art. 178 par. 2 kp). In addition, for non-disabled workers to work overtime resulting from art. 15 paragraph. 3 of the Act of 27 August 1997. Vocational Rehabilitation and Employment of Disabled Persons (consolidated text. Journal of Laws of 2011 no. 127, poz.721 as amended.) Can be waived if their request medical examiners preventive employees or failing a doctor caring for that person agrees.
Refuse to work overtime, but only if the reason is the particular needs of employers may also workers in the workplace, which are exceeding the maximum allowable concentrations and intensity of agents harmful to health.
Important
Unjustified refusal to execute the command of the employer concerning work overtime is usually beyond exceptional circumstances, be treated as misconduct, which could result in punishing the employee one of the disciplinary penalties or in special cases – be grounds for dismissal from his job.
situations disputed assess the court
the above-mentioned group of employees so they can refuse to provide the overtime work without worrying about the consequences. They protect them specific labor laws. Other employees, such protection is no longer entitled to.
The question is whether they have the right to refuse to perform work overtime, eg. Because of family or health. In my opinion, in particularly justified cases – yes. Refusal to work overtime may also be justified when a command such work would violate the principles of social coexistence (Article 8 kp). It may refer eg. An employee who, due to ill health or important family issues (need to pick up the child from the nursery by a single mother) can not perform overtime work.
Malgorzata Jankowska, an expert labor law
Legal basis:
Art. 148 , Article 151, Article. 178, Art. 203 of the Act of 26 June 1974. – Labour Code (text jedn.Dz.U. 2014, poz.1502).
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