Problems with a task-based working system
Hiring employees according to a task-based working system when there are no grounds for applying a system of that kind, and where the level of tasks required of an employee is not properly selected, could prove costly for an employer in the event of a dispute.
Contrary to popular opinion, an employer cannot apply a task-based working system for work of every kind, and a task-based working system cannot be used as a tool enabling flexible organisation of employees’ work according to the amount of work that needs to be done on particular working days.
The issue of a task-based working system is regulated in art. 140 of the Polish Labour Code. This article states that where reasonable given the nature of work, method of organisation of work, or place of work, a task-based working system may be applied. It is generally accepted that a task-based working system can be used where an employer’s monitoring of working hours of an employee is impossible or hindered due to the nature of work, method of organisation of work or place of work. A classic example of employees to whom a task-based working system applies is mobile employees (such as sales representatives) whose job is to move around and perform tasks outside of the employer’s premises.
Under art. 140 of the Labour Code, an employer determines the time necessary to perform the assigned tasks in consultation with an employee, taking into account the amount of working time provided for in art. 129 of the Labour Code. The requirement for “consultation” does not mean that the employee’s consent has to be obtained. If an consensus is not reached with the employee this does not render creation of a task-based system ineffective. In the event of a dispute with an employee, an employer will have to prove on the other hand that the tasks assigned to the employee could be performed within the working time limits specified in art. 129 of the Labour Code.
Tasks assigned to an employee working in a task-based system cannot be determined provisionally day by day by the employee’s superior. In a judgment of 19 January 2016, the Supreme Court stated that tasks assigned to an employee should be specified in the document (documents) or activities formulating the employment relationship (I PK 24/15), while if an employee carries out the instructions of their superior on a daily basis within the specified time, then they cannot be deemed to work in a task-based working system regardless of the name used.
Importantly, it should be feasible for tasks assigned to an employee to be performed during the working time provided for in art. 129 of the Labour Code. This means that an the working hours of an employee working under a task-based work system cannot exceed eight hours in a twenty-four-hour period, and 40 hours on average in a five-day working week in the adopted reference period (as a basic rule no more than four months). If the tasks assigned to an employee cannot be performed within normal working hours, an employee is entitled to payment for overtime. Giving an employee tasks which cannot be carried out in normal working hours should be classified as instructions to work overtime.
A task-based working system does not exclude the possibility of claims being raised for the working time limits in a twenty-four-hour period being exceeded. The Supreme Court has consistently stated that an employer cannot refer to a “mixed working time system”, which is a structure that does not exist under the law, combining a task-based and balanced working system into one. The court considered a system of this kind circumvention of labour law regulations on overtime and shifting the risk connected with incorrect organisation of work onto the employee. If the tasks assigned to an employee require work beyond the limit within a twenty-four-hour period on a long-term basis, and despite due diligence the employee is not able to complete the tasks within an eight-hour working day, the employee can demand payment for exceeding the working time norm applicable in a twenty-four-hour period.
An employee cannot demand additional payment if work beyond the normal hours is not a result of the nature of the tasks assigned to the employee, but is a question of the employee’s own choice or inadequate skill.
Agnieszka Godusławska, adwokat, Employment Law practice, Wardyński & Partners
