Termination of Employment with a Councilor

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Table of contents:

  1. Can the municipal council refuse consent?
  2. What must the resolution of the municipal council specify?
  3. When is the consent of the municipal council not required?

According to Article 25(2) of the Act on Local Government, the termination of employment with a councilor requires prior consent from the municipal council of which the councilor is a member. The municipal council will refuse consent to terminate the employment with a councilor if the basis for terminating the employment is related to the exercise of the councilor’s mandate. The provision uses the term “employment relationship,” thus the specific protection provided applies to all types of employment relationships: employment contracts, appointments, nominations, elections, and also cooperative employment contracts. Civil law relationships such as contracts for specific work, task-specific contracts, or managerial contracts are not covered by Article 25(2) of the Act.

Can the municipal council refuse consent?

Article 25(2) of the Act clearly states that the municipal council will refuse consent to terminate the employment with a councilor if the basis for termination is related to the exercise of the councilor’s mandate.

In the past, it was argued that consent to terminate employment with a councilor or refusal of such consent was at the discretion of the council, and only if the council determines that the termination of employment is based on events related to the exercise of the councilor’s mandate, it is obligated to refuse consent. This approach in case law has changed, and currently prevailing legal opinion states that the specific protection afforded to councilors under the provisions requiring consent from the council applies only to situations where the termination of employment is indeed related to the exercise of the mandate. If no such connection exists, the council cannot refuse consent to terminate employment with a councilor.

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What must the resolution of the municipal council specify?

The resolution of the municipal council regarding consent to terminate employment with a councilor cannot be abstracted from the reasons given by the employer and must be justified based on objectively verifiable arguments and grounded in the factual circumstances concerning the reasons for terminating the employment relationship. Importantly, the municipal council is authorized to assess the justification for terminating the employment with a councilor only to the extent necessary to demonstrate that the reasons provided by the employer are pretextual, and the actual reasons are related to events concerning the exercise of the councilor’s mandate. However, it is not the role of the municipal council to resolve disputes regarding labor law or to assess the circumstances justifying the termination of the employment relationship, as this would encroach upon the jurisdiction of the labor court (judgment of the Voivodeship Administrative Court in Lublin dated November 21, 2023, III SA/Lu 466/23).

When is the consent of the municipal council not required?

Article 25(2) of the Act does not apply when the employment relationship ends not due to its termination, but because it expires (e.g., in the case of expiration of a 3-month temporary arrest period – Article 66 of the Labor Code), or when the employee voluntarily consents to termination of the contract or terminates it themselves, or when they are employed on a basis other than an employment relationship.

It should also be noted that analogous regulations apply under the Act on County Self-Government and Voivodeship Self-Government.