THE EMPLOYER MAY CLAIM CONTRACTUAL PENALTIES FROM AN EMPLOYEE WHO HAS BREACHED THE NON-COMPETITION CLAUSE AFTER TERMINATION OF EMPLOYMENT – regardless of whether the Employer has suffered damage as a result of the Employee’s breach
On the other hand, the Employee may request the contractual penalty to be reduced (mitigated), should they demonstrate that the obligation has been largely fulfilled or that the penalty is grossly excessive.
This is the view adopted by the Supreme Court in its ruling of 25 January 2018 with reference number II PK 301/16
http://sn.pl/sites/orzecznictwo/Orzeczenia3/II%20PK%20301-16-2.pdf
„…It should therefore be recognised that the possibility for the employer to claim a contractual penalty by virtue of non-performance or improper performance by the employee of their non-competition obligation after the termination of the employment relationship does not depend on whether there has been any damage in relation to the improper performance of the obligation (Article 484 § 1 of the Civil Code in conjunction with Article 300 of the Labour Code). The Employee may request the contractual penalty to be reduced (mitigated), should they demonstrate (according to the general evidence rule stipulated in Article 6 of the Civil Code) that the obligation has been largely fulfilled or that the penalty is grossly excessive. Furthermore, in establishing whether the penalty is grossly excessive, account should be taken of the relationship between the amount of the respective contractual penalties and the remuneration earned by the employee who is bound by the non-competition agreement..."