The termination of employment by disciplinary dismissal should be treated as a last resort by employers. The use of this possibility requires meeting a number of requirements, including the employee’s fault. The Supreme Court, in its judgment of December 6, 2018 (reference number II PK 231/17), interpreted art. 52 § 1 k.p. He pointed out that the violation by the employee of a non-competition clause, classified as “a severe violation of an employee’s basic employee duties” may involve varying degrees of guilt. It can also be completely non-culpable, in which case the sanction in the form of disciplinary dismissal is a sanction going too far.
In addition, the Court held that this provision does not distinguish within the subjective element of the fault of deliberate and unintentional division. In addition, point 1) art. 52 § 1 k.p. it is conditioned by the severity of the violation of employee duties. The concept of “serious violation” includes intentional guilt and gross negligence, a kind of unintentional guilt.
Unlawfulness, understood as an objective fault, is not enough to terminate the employment contract without notice in accordance with art. 52 § 1 point 1) k.p., if the employee’s psychological attitude does not indicate intentional fault or gross negligence.