Seguimiento dado a las recomendaciones del Comité y del Consejo de Administración - Informe núm. 353, Marzo 2009

Effect given to the recommendations of the Committee and the Governing Body

1. 245. The Committee last examined this case which concerns numerous acts of anti-union intimidation and discrimination, including dismissals, by the management of two companies (Hetman Limited and SIPMA SA), lengthy proceedings and non-execution of judicial decisions, at its March 2008 meeting [see 349th Report, paras 228–235]. On that occasion, the Committee: (1) noted with interest that the court ordered the reinstatement of both trade unionists, Mr Zenon Mazus and Mr Marek Kozak and requested the Government to indicate the current status of their employment; (2) requested the Government to keep it informed of the progress of the proceedings against 19 senior managers of SIPMA SA enterprise; (3) requested the Government to keep it informed of the outcome of the appeal proceedings in the case of Mr Jan Przezpolewski, the President of Hetman Ltd Management Board, found guilty of malicious and repeated violations of employees’ rights, and to transmit a copy of the judgement; and (4) once again requested the Government to carry out an investigation and communicate the findings on the industrial relations climate between SIPMA SA enterprise and the NSZZ “Solidarnosc” Inter-Enterprise Organization in the Middle East Region and, if the findings demonstrated a need, to intercede with the parties so that the union may exercise its activities without any interference or discrimination by the employer against its members or delegates.
2. 246. In its communication dated 8 September 2008, with reference to the case of the trade unionist Mr Zenon Mazus, the Government recalls that, the regional court in Lublin by its decision of 14 June 2005 dismissed the appeal filed by the respondent (SIPMA SA entreprise) against the decision of the district court in Lublin and adjudged in favour of the plaintiff. On 29 June 2005, SIPMA SA entreprise paid Mr Zenon Mazus the amount of 45,487.83 Polish Zlotych (PLN) gross, corresponding to the full amount of remuneration adjudged by courts of both instances (district court and regional court in Lublin) for the term of unemployment. The employer, however, relieved the worker from his obligation to work until 23 June 2005 while maintaining his right to remuneration and obliging him to remain available under an indicated telephone number on working days and then subsequently, the employer terminated the employment contract of Mr Mazus. The Government underlines that the termination was preceded by a notification of the Employees and Supervision Trade Union of SIPMA SA, which replied that it had no grounds for defending an employee who was not a member of its union. On 30 June 2005, the employer relieved Mr Mazus from the obligation to work as from 14 July 2005 until the end of the termination period, subject to the right to remuneration. By virtue of a judgement of 29 September 2006, the district court in Lublin dismissed the complaint of Mr Mazus regarding reinstatement to work and adjudged an amount of PLN4,245 as a compensation to be paid to the employee by SIPMA SA. This amount was paid by 28 November 2006. The Government confirms that Mr Zenon Mazus is currently not an employee of SIPMA SA.
3. 247. The Government further recalls the history of the case concerning Mr Marek Kozak and adds that on 23 November 2005, Mr Kozak submitted to the employer an offer to terminate his employment contract on terms agreed upon by the parties. An agreement was concluded on 25 November 2005 stipulating that the employment contract would be terminated on 30 November 2005 and that an amount of PLN11,500 would be paid to Mr Kozak, exhausting all claims of the employee in relation to the employer. This amount was paid out by the employer on the date of termination of the employment contract. The Government confirms that Marek Kozak is currently not an employee of SIPMA SA.
4. 248. With regard to the case against 19 senior managers of SIPMA SA, the Government indicates that the proceedings are under way before the district court in Lublin and are subject to continuous administrative supervision by the president of the regional court in Lublin. The Government further explains that 34 court sessions with regard to this case were held in the second half of 2007 and the first half of 2008, during which the court considered the relevant evidence, that 30 witnesses are still to be questioned and that the sequence of the evidence process is not terminated yet. The Government considers that the proceedings are conducted without an unnecessary delay.
5. 249. With regard to Mr Jan Przezpolewski, who was fined and sentenced for one-and-a-half years of suspended custodial sentence by the district court for malicious and persistent infringement of employees’ rights at the Hetman Limited entreprise, the Government indicates that this judgement was upheld by the regional court in Elblag.
6. 250. In connection with the recommendation of the Committee to examine the industrial relations climate between SIPMA SA enterprise and the NSZZ “Solidarnosc” InterEnterprise Organization in the Middle Eastern Region, the Government indicates that between 29 July and 1 August 2008, the State Labour Inspectorate (an organ subordinate to the Sejm of the Republic of Poland) conducted an inspection. According to the inspection report, out of 480 employees, 21 are members of the trade union of SIPMA and three are members of the trade union “Solidarnosc”. In respect of the latter organization, the Government refers to the reinstatement case of its member Mr Henryk Jedrejek, who argued to have a right to special protection of the employment relationship under article 32 of the Trade Unions Act and pursuant to the resolution of the Inter-company Committee. While it disagreed with the plaintiff on the question of special protection, by virtue of its judgement of 10 March 2008, the district court in Lublin reinstated Henryk Jedrejek in his functions based on the previous terms of employment without loss of pay. In particular, the court found that on 30 March 2004, due to the decreasing number of its members, the NSZZ “Solidarnosc”, which operated at SIPMA SA, together with organizations operating at the premises of other employers, concluded an agreement on establishing a single organizational structure called the Inter-Entreprise Organization of the NSZZ “Solidarnosc” for the Central and Eastern Region. Pursuant to this agreement, the current company organizations were turned into circles (the lowest unit of an inter-company organization). The court considered that while pursuant to its statute, the NSZZ “Solidarnosc” could legally establish such circles, no provision of the union statute provided that circle members shall be protected under article 32 of the Trade Unions Act. According to the court, the union statute did not stipulate that the circle – as the lowest organizational unit – shall have the rights of an executive body of a trade union. Further arguments of the labour court imply that even though the number of three members does not deprive a trade union from the right to conclude an agreement on establishing an inter-company organization to exist as a company organization, it still deprives it of the rights resulting from the Trade Unions Act. The court therefore did not agree with the plaintiff on the question of special protection of the employment relationship. The court reinstated the plaintiff in his functions, given the fact that it had legal doubts on the rights of the structure of the NSZZ “Solidarnosc” operating at SIPMA SA. In addition, the court already had these doubts when the company organization was still in operation. This was expressed in the suit filed by SIPMA SA to determine if there was an obligation to cooperate with this organization. On 8 March 2005, the regional court discontinued the proceedings in the aforementioned case due to the company organization of the NSZZ “Solidarnosc” losing its capacity to take part in a civil case. The Government further indicates that SIPMA SA appealed the ruling of 10 March 2008.
7. 251. The Committee notes the information submitted by the Government with regard to the legal dispute between SIPMA SA enterprise and two trade unionists, Mr Zenon Mazus and Mr Marek Kozak. The Committee notes that on 14 June 2005, the regional court confirmed the decision of the district court ordering reinstatement of Mr Mazus. The Committee further notes that the employer relieved Mr Mazus from the obligation to work justifying that the dismissal was due to a lack of possibility to provide work, and provided a financial compensation. The trade union of SIPMA SA did not find any ground to defend Mr Mazus since he was not a member of this union. On 29 September 2006, the district court in Lublin dismissed the complaint of Mr Mazus regarding his reinstatement to work. The Committee recalls that Mr Mazus was a leader of the NSZZ “Solidarnosc” trade union in the SIPMA SA enterprise prior to its amalgamation with the NSZZ “Solidarnosc” Inter-Enterprise Organization of the Middle East Region. The Committee recalls that no person shall be prejudiced in employment by reason of trade union membership or legitimate trade union activities, whether past or present [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 770]. The Committee regrets that SIPMA SA enterprise offered Mr Mazus a financial compensation instead of ensuring his reinstatement in his functions and recalls that no one should be subjected to anti-union discrimination because of legitimate trade union activities and the remedy of reinstatement should be available to those who are victims of anti-union discrimination [see Digest, op. cit., para. 837]. With regard to the case of Mr Kozak, the Committee notes that an agreement providing for termination of employment compensation of PLN11,500 was concluded between the worker and the entreprise.
8. 252. With regard to the case against 19 senior managers of SIPMA SA, the Committee notes the information provided by the Government indicating that the proceedings are under way before the district court in Lublin and subject to continuous administrative supervision by the president of the regional court in Lublin. The Committee recalls that this case has been pending since 14 October 2003 and once again emphasizes that justice delayed is justice denied [see Digest, op. cit., para. 105]. The Committee firmly trusts that the proceedings will be concluded without any further undue delay and requests the Government to keep it informed of the progress made and to transmit a copy of the judgement once handed down.
9. 253. With regard to the disputes in the Hetman Limited enterprise, the Committee notes the Government’s indication that the regional court in Elblag upheld the district court regarding the case of Mr Jan Przezpolewski who was fined and sentenced to a
   • one-and-a-half year suspended sentence for malicious and persistent infringement of employee rights.
10. 254. The Committee notes the information provided by the Government with regard to the findings of the investigation on the industrial relations climate between SIPMA SA enterprise and the NSZZ “Solidarnosc” Inter-Enterprise Organization in the Middle East Region, conducted by the State Labour Inspectorate (an organ subordinate to the Sejm of the Republic of Poland) between 29 July and 1 August 2008. The Committee requests the Government to keep it informed of the final ruling in the case concerning the dismissal of Mr Henryk Jedrejek, member of the NSZZ “Solidarnosc” Inter-Enterprise Organization from SIPMA SA enterprise and to keep it informed of his current employment status.