How to effectively avoid the consequences of termination of an employment contract by mutual agreement?

Termination of an employment contract by mutual agreement is the least stressful way for an employee to end the employment relationship. In theory, it involves the consent of both parties to the contract regarding its termination and a conflict-free handling of the related matters. But what if we decide to withdraw from the effects of the submitted declaration of will?

What does the Labor Code say?

The regulations contained in the Labor Code do not provide for the possibility for the parties to withdraw from the effects of the contract termination notice. However, this does not mean that there are no possibilities to revoke one’s declaration of intent. As the literature shows, withdrawal from the legal effects of a declaration of will is only possible if the party can prove that it is affected by a defect. This issue is regulated in detail by the Civil Code – it distinguishes the following types of defects in declarations of will:

• lack of awareness or freedom in expressing will (Art. 82 of the Civil Code);
• simulativeness of the submitted declaration (Art. 83 of the Civil Code);
• error regarding the content of the legal act (Art. 84 of the Civil Code);
• fraud and threat (Art. 86–87 of the Civil Code).

The first condition allowing the declaration of will to be considered invalid is the lack of awareness or freedom in expressing will. In the context of employment relations, it is hard to find such a case. A situation excluding conscious and free will could be, for example, an employee’s intoxication during a company party. It is certain that acting under even strong nervousness or stress does not exclude conscious and free expression of will. Art. 82 of the Civil Code does not require the party invoking this defect to make an additional declaration of withdrawal from the effects of the declaration – invalidity occurs by operation of law.

The next case allowing withdrawal from the effects of will is acting under error. However, it cannot be just any error, but only a material error – it must be shown that without acting under that error, the party would not have decided to act. For example, an employee terminated a contract by mutual agreement, not knowing she was pregnant (and thus entitled to numerous rights). It can be assumed that if she had known about her condition, she would probably have continued working (see Supreme Court judgment of 19.03.2002, case ref. I PKN 156/01).

The last type of defects in the declaration of will is acting under unlawful threat. To classify an act as an unlawful threat, it is necessary to prove that the party had a justified fear that harm would be done to themselves or another person (not necessarily close to the employee), either personal or financial. An unlawful threat is not identical with criminal acts – it may also be so-called civil threats. Jurisprudence shows, however, that employees’ claims of contract termination under threat are often unsuccessful. As repeatedly emphasized by case law, an action threatened by a party that falls within the limits of its rights cannot be considered unlawful. There is extensive case law on this matter. For example: according to the Supreme Court, informing an employee by a supervisor about a negative assessment of the employee’s unauthorized actions and indicating possible legal consequences, including warning that the act may be grounds for immediate dismissal, is not an unlawful threat (case ref. I PR 106/82). It is also important to remember that an employee’s decision to terminate the contract by mutual agreement under pressure does not always mean acting under threat (see Supreme Court judgment of 5.06.2014, case ref. I PK 311/13). Each situation must be considered individually.

Summary

Termination of an employment contract by mutual agreement does not mean a definitive lack of possibility to withdraw from its effects. An employee or employer who wants to withdraw from a previously submitted declaration of will should consult a professional advisor to avoid unnecessary stress and potential additional costs.