Transfer of competitor’s employees in the light of article 12 of the Act on combating unfair competition

An entrepreneur of the furniture industry brought an action concerning inter alia conduct of a competitor consisting in transferring employees of the former by encouraging them to change the place of employment.

In the opinion of the Appeals Court in Białystok, article 12 section 1 of the Act on combating unfair competition [ACUC] forbids to encourage anyone not to perform employee duties or perform them in an improper manner, but unlike article 12 section 2 of the ACUC the provision does not forbid to encourage anyone to give notice to terminate respective agreements. Thus, the Court did not share the view expressed in the judgment of the Appeals Court in Cracow of 15 November 2012, file ref No. IACa 1024/12, that encouraging an employee to terminate a contract of employment does not meet the criteria of a tort.

From the said ruling it appears that in appraising this kind of behaviour from the legal point of view autonomous will of an employee is important who should not act in the circumstances involving error or deceit. The Court did not deny that in certain cases a transfer of employees of a competing entrepreneur may constitute an act of unfair competition. However, it should only apply to those cases where a competitor uses unfair methods, such as fraud, deceit or misleading or when such entrepreneur intends to achieve an unfair goal.

The plaintiff pointed also to the actions of the defendant suggesting the employees to go on sick leave in large numbers or fail to go to work without justified cause. These charges proved true in relation to at least some of the employees who during the sick leave took work for the defendant on his express order.

Such conduct should be qualified as encouragement not to perform employee duties which is aimed at bringing benefits to the encouraging party or being harmful to another entrepreneur and as such should not be protected. Just in these proceedings the claim of the plaintiff, aimed at stopping violations, was pointless because the staff of both entrepreneurs was stabilized already at the date when an action was brought and the defendant did not continue further actions of this kind. Also, the Court ruled out a fear that the defendant will continue these in the future.

• judgment of the Appeals Court in Białystok of 12 December 2014, file ref No. I ACa594/14