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As a rule, the instructions of the employer can only apply at work that the employee is committed to perform and can only be recommended exceptionally for work other than that specified in the contract.
An employee may refuse to do this type of work
/123RF / Picsel
We employ a security guard / guardian. In his mandate, there is an additional entry: "to execute other orders of the superior". Is it correct? Is it possible for a protection employee under the existing work contract to recommend the performance of other duties such as snow removal or cleaning? Can an employee refuse to do this kind of work?
According to art. 22 § 1 Kp., In entering into an employment relationship, the worker undertakes to perform a specific type of work on behalf of the employer and under his direction, in the place and at the Time determined by the employer and by the employer – to hire a worker for remuneration.
The type of work is one of the essential elements of the employment contract (Article 29 of the Code of Civil Procedure). At the same time, it can be determined by indicating the place of work, function, occupation or descriptively, specifying the type of work that the employee must perform as part of the employment relationship. With the art. 22 items it follows the subordination of the employee of the employer, which results in the right of the employer to give instructions to the employee.
In turn, in accordance with art. 100 § 1 Kp., One of the basic tasks of employees – apart from the conscientious and diligent performance of work – is to follow the instructions of their supervisors, which relate to the agreed work and are not contrary to the law or the employment contract. Therefore, each employer's recommendation does not have to be completed. The employee is not obliged to execute orders that do not relate to the work, they are contrary to the agreed type of work or the law.
As recognized by the Supreme Court in the judgment of 12 April 2012 (reference number II PK 216/11): "(…) Orders within the meaning of Article 100 § 1 of the Labor Code, which relate to work and go beyond the type of work (agreed scope of tasks), so they can only exceptionally apply for another job.
On the basis of this provision, it is not possible to circumvent the regulations of the art. 29 § 1, point 1 Kp., Regarding the type of work accepted and by the service order, replaces the work of the employee by a different work than the agreed one. The provision of the art. 100 § 1 Kp. it is a regulation concerning the management of the employer and the subordination of the employee, but in principle within the scope of the agreed work.
On the other hand, subordination, which must go beyond this scope, may be required of an employee in a situation justified by a particular need to perform other work, usually in a situation. d & # 39; emergency. The employee can also evaluate himself if he has the ability and ability to execute a command going beyond his tasks, regardless of whether job tying can not not result in permanent (long-term) change in the type of work agreed. (…) "
Important: as a general rule, the employer's instructions can only be applied at work that the employee is committed to performing and can only be recommended to be employed. exceptionally to work other than that specified in the contract.
As explained by the Supreme Court in the previous rationale for the decision: "(…) The type of work agreed gives (…) to an employee a guarantee of security in terms of duties and responsibilities, defines On the other hand, the scope of rights and management of the Labor Code, which concern work and go beyond the type of work (agreed scope of work), can therefore only Exceptionally to refer to another job (…) ".
These cases include, for example:
- Art. 42 § 4 of the Labor Code, according to which the employer has the right to entrust to an employee, if the needs of the latter justify it, a work other than that specified in the employment contract for a period of n & # 39; 39, not exceeding 3 months of the calendar year, it does not decrease the remuneration and corresponds to the qualifications of the employee, and also
- Art. 81 § 3 Kp. concerning the fact of giving a good job to another employee during a period of unavailability.
In the situation described in the question, the employee is employed as porter (security guard). The employer gave him the scope of duties, which is a detailed specification of the obligations resulting from the type of work specified in the contract of employment. As you can guess, there is no snow removal or cleaning work.
Of course, the fact that an activity is not mentioned in the scope of the tasks does not in itself mean that the employee can not do so at the request of the employer. It can not be assumed from the outset that any activity not mentioned in the scope of the duties is contrary to the type of work agreed to by the parties.
In its judgment of 26 February 2003 (reference number I PK 149/02, MPPr-wkł 2004/4/7), the Supreme Court stated that: "The tasks resulting from the occupation of a job specified in the employment contract can be materialized not only by presenting to the employee a written field of activities, but also by following the instructions of the employer, within the limits set by the contract depending on the type (…) "The type of work and the evaluation of the place of an activity in its field of application are decisive.
Snow removal and snow removal work is not a typical activity for security personnel, although it is sometimes complementary (for example, maintaining order near entrances and doors). If they do not fall under the type of work that the employee agrees to perform, the employer should not recommend them. If this is the case, the employee has the right to refuse (of course, except in special situations, such as failure, a natural disaster, etc.).
As stated by the Supreme Court in the justification of the judgment of 18 November 1999 (reference number I PKN 370/99, OSNP 2001/7/225): "(…)
The power of the employer to give instructions to employees (…) is not absolute, which means that the employee may refuse to execute the order, this which goes beyond the scope of the right of the employer (…) ". Placing the clause as part of the employee's duties, according to which he must perform "other orders from the superior", also does not give the employer the right to delegate to the employee any obligations who are not covered by the type of work resulting from his employment contract.
Although labor law provisions do not prohibit employers from applying such clauses, we feel that they should not use them too broadly, as they could mislead the employee. (A more readable reading would be an obligation for the employee to execute the orders of the other supervisors regarding: work in accordance with the law and the type of work specified in the contract. ") If, however, such a clause is included in the scope of the contract. Employee's activity, it must be interpreted in accordance with the rules given above.This means that, on its basis, an employer may hire an employee other than those arising from the scope of his duties, but they must remain bound to the work on which the parties are agreed in the employment contract and possess the qualifications of the employee.
We are careful!
The change in the extent of the employee's activities by the employer does not constitute a significant change in working conditions. Therefore, a notice of change is not necessary if the activities to be performed by the employee do not go beyond the tasks related to his / her position (position) specified in the employment contract. This was confirmed by the judgment of the Supreme Court of 14 October 2004 (reference number I PK 663/03, OSNP 2005/19/298), according to which: "In the case of instructions relating to the exercise of activities resulting from the type of work specified in the employment contract, the employer is not obliged to terminate the working conditions (Article 42 § 1 of the LC) and there is no obligation to apply Article 42 § 4 of the LC ". On the other hand, the modification of the type of work carried out by an employee requires the use of a notice (Article 42 § 1 of the Code of Civil Procedure), unless the parties sign an agreement on the subject.
As the Supreme Court noted in the justification of the judgment of 2 October 2008 (reference number I PK 73/08): "(…) The nature of the employee's function and the type of work he performs belong to the essential conditions of the employment contract. If the new duties imposed on the employer by the employee are significantly different from the duties performed by the employee in the employment contract, the position of the employer can then be considered as not fulfilling the essential conditions of the employment contract.
In the judgment of March 20, 1964, reference number I PR act 32/64 (…) The Supreme Court assumed that the burden of an employee employed as an automobile driver in addition to the function of driver, and therefore the obligation to collect tolls and – consequently – to calculate the perceived liquidity, introduces major changes regardless of the severity of the work itself, it is therefore necessary to prevent beforehand current working conditions. (…) "
Law No. 18 on Insurance and Work of 2018-09-10, proposed by GOFIN
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