How to write a termination letter

Both employers and employees understand that not every job will last forever. When it is time to let an employee go, whether for cause?(misconduct or poor performance), to reduce expenses, or for other reasons, a termination letter is the only way forward. Once the decision is made, termination letters must then include factual, neutral, specific and understandable justification outlining the reasons for the termination.

Under Polish law, employment contracts may be terminated by each party (employer and employee), in regular mode, i.e., within the notice period. What is specific to Polish law is that there has to be a concrete and objective reason for terminating the contract by the employer; otherwise,?the employee may be reinstated by the court in the case of a legal dispute.

What is also specific to Polish law, is that every employment contract (even a fixed-term contract) may be terminated subject to the statutory notice periods. Therefore, even if an employee has a 12-month fixed-term contract, it can be terminated with implied statutory notice periods. The contract expires automatically with the lapse of the statutory period of notice.

What legally constitutes an employee termination letter?

Employee termination letters inform employees of their termination?and set out any required notices under employment law. Additionally, it aims to?tie up loose ends, such as how to return company property and how benefits will be affected.

Even if the employee has been informed orally about the termination, there should be a written termination letter for paper trail purposes. Termination letters provide a written record of the dismissal, reasons for termination, and references to supporting documentation (such as written notices or performance evaluations). They can also remind employees of their obligations under non-disclosure or non-compete agreements. Moreover, if the employee pursues legal action, the termination letter can be used to show that the company met its obligations as an employer.

On a practical level, employee termination letters act as a guide to dismissal. They can provide helpful information about any outstanding benefits owed, including unused vacation, healthcare or other benefits they may have enjoyed during their employment. Termination letters also let employees know exactly when and how their term of employment will end. Lastly, they can also provide directions as to how to return company property, and when their access to company systems will be revoked.

The legal form required for the termination letter:

• It should be made in writing (hard copy with wet signature), or
• An electronic form signed with a qualified electronic signature.

As regards the delivery of the termination letter:

• As a rule, it should be delivered to the employee in person, ideally during a face-to-face meeting, or
• Exceptionally, the termination letter may be delivered by post to the registered address or by email.

Reasons for terminating the employment agreement

The reasons for terminating the employment agreement with notice fall into two broad categories:

A. Termination for cause (misconduct, or poor performance).

Termination letters in the case of a negative assessment of the employee need to include real, specific and understandable justification evidencing the reasons for the termination.

If the employee pursues legal action, they will have to prove that the reasons given by the employer were not insufficient for dismissal or that the assessment was biased.

B. Termination as a result of restructuring (downsizing)

Termination letters in the case of reorganization also need to include real, specific and understandable justification for the termination. In most cases, the only reason for termination is restructuring (downsizing).

Downsizing is defined here as a process of strategic restructuring that involves reducing the number of personnel in an organization in order to cut costs, and/or meet financial goals. It is typically used as a last resort measure when other cost-saving strategies have been exhausted.

Generally, termination letters in each case should include:

1. Date of the letter.
2. Reasons for the termination (specific, real, concrete and objective).
3. Date when employment ends.
4. Previous verbal or written warnings (when dismissing for cause).
5. Information about the right of appeal to courts.
6. List of company property to be returned.

Tips for drafting a termination letter

Legal risks?associated with the process of termination should be mitigated by careful planning and involving lawyers at an early stage. Here are some tips to make the process easier:

• Use a professional tone: The tone of the employer should be neutral and professional. Jargon, overly familiar language, or anger should be avoided.
• Cover your legal bases: While drafting a termination letter, one should imagine that it could be read out in court, or included in a legal filing. You should collect (in advance) enough evidence to justify the termination decision in a factual tone, with supporting documentation where necessary. For instance, if the termination is due to poor attendance, the employer should have specific information and a list of the dates when?the employee was absent or late, etc.
• Company reputation should be protected: In the digital age, it’s easy for prospective employees to research the companies they’re interested in working for. If the termination process is chaotic and unprofessional, your reputation - and ability to attract top candidates - can suffer.

Protection from dismissals

It should be remembered that under the Polish labour code, all employees are protected against termination during leave and periods of employee’s justified absence. In addition to that, certain categories of employees are protected against termination if they meet certain criteria (e.g. pregnancy, pre-retirement age etc.). Any termination letter delivered to an employee protected in this way is contrary to the law, and if the employee appeals to the court, they will probably be reinstated. Whether it is downsizing or individual dismissal – the process should be well-planned?and supervised from the outset.

Conclusions

Employers must plan dismissal proceedings carefully, as failure to do so means that employees can make a claim against their employer, via the employment court, of wrongfully or unfairly dismissed.

Usually, before an employer can lawfully dismiss an employee for poor performance, they must first show they have followed a process to allow the employee every opportunity to improve?and meet the standards required in their role. Failure to follow a fair capability management process can lead to the dismissal being considered unfair, potentially triggering an unfair dismissal claim.

Moreover, the employer should have sufficient evidence confirming poor performance. If the employer has a performance management process, it has to be followed meticulously to?address any identified employee performance difficulties. Similarly, if a performance management process is lacking, employee terminations should be handled on an individual basis.