Rozważania dotyczące wypłaty wynagrodzenia za czas pozostawania bez pracy w kontekście pobranego zasiłku macierzyńskiego

The jurisprudence and the doctrine remain generally consistent that remuneration for the period of unemployment (Art. 47 and 57 of the Labor Code) fulfills two important roles, i.e. it constitutes a kind of compensation for the employee reinstated to work, at the same time serving as a sanction for the employer for unjustified or inconsistent termination of the employment relationship by law. For particularly protected persons, the legislator provided for the payment of such remuneration for the entire period of unemployment. However, the author draws attention to the fact that courts exclude the possibility of granting this benefit for periods of incapacity for work, including the time of receiving maternity benefits. This means that a particularly protected employee whose employment relationship has been unlawfully terminated will not receive remuneration for the period of unemployment if, in the period between the termination of the employment relationship and taking up work as a result of reinstatement, he was incapable of working, but also if he exercised parental rights. Deducting the period of receiving maternity benefits from the period of unemployment for which remuneration is due is, in the author’s opinion, an unacceptable interpretation from the level of insurance regulations, but also violating the constitutional principle of maternity protection (Art. 18 of the Constitution of the Republic of Poland) and limiting the special protection of the durability of the employment relationship of parents’ employees.