Kontrowersje dotyczące stosowania art. 57 § 2 (art. 47) w zw. z art. 39 Kodeksu pracy względem nauczyciela mianowanego w wieku przedemerytalnym – uwagi de lege lata i de lege ferenda

Abstract

The Teachers’ Charter Act forms two bases for the employment of a teacher, i.e. employment contract and appointment, but the choice of the appropriate one remains dependent on the possession of a certain degree of professional promotion and the existence of conditions for full-time employment at school for an indefinite period. The termination of the employment relationship with employees of this professional group is also comprehensively regulated in the Teacher’s Charter Act and guarantees a higher level of protection than the regulations of the Labour Code Act. The analyzed issue does not concern the question of protection, but the unjustified differentiation of rights to which teachers-employees employed on different legal bases are entitled, after their reinstatement due to unlawful termination by the employer. According to the case law, the reference in Article 57 § 2 and Article 47 to Article 39 of the Labour Code Act is a reference to the prerequisite of reaching the pre-retirement age together with the basis of employment, which is the employment contract. In the author’s opinion, this remains contrary to the principle of equality expressed in Article 32(1) of the Constitution of the Republic of Poland, since from the perspective of compensation for the time of unemployment, the criterion of the basis of the employment relationship is not relevant.