Current news regarding Labor Law.
ATTENTION! automatic translation from Polish
- Can a mandate contract actually be an employment contract?
ATTENTION! Automatic translation from Polish
Many dishonest employers offer employees mandate contracts, even though the work performed is no different from that performed under a standard employment contract (UoP). Why do they do this?
First and foremost, employers know that the vast majority of people don’t know the differences between these two solutions and are unaware that they may be entitled to more favorable employment. With a mandate contract, employers can save on social security contributions, holiday pay, and even overtime bonuses, of course at the employee’s expense. An employment relationship based on an employment contract provides broader protection for employees, so it’s worth knowing when you are actually a party to it.
According to Article 22, Paragraph 11 of the Labor Code, the name of the contract is irrelevant when classifying it as an employment contract. This means that individuals employed under other types of contracts, primarily mandate contracts (as a contract for the provision of services under the terms of a mandate contract is commonly referred to), may in fact be parties to employment contracts without benefiting from the benefits arising from this fact, such as:
• Paid leave;
• Overtime allowances;
• Additional time off in the event of overtime, Sunday work, etc.
How to recognize a „hidden” employment contract?
To determine whether a given mandate contract is actually an employment contract, it is necessary to verify whether the characteristics of an employment relationship prevail in the given employment situation (Supreme Court judgment, file no. I PK 176/16). These characteristics are initially described in Article 22, paragraph 1 of the Labor Code:
§ 1. By entering into an employment relationship, the employee undertakes to perform work of a specified type for the employer and under their direction, at a place and time designated by the employer, and the employer undertakes to employ the employee for remuneration.
This, however, is a rather general description, which has fortunately been clarified by Supreme Court case law. In judgment I PKN 416/98, the Court ruled that „The characteristics of a legal relationship based on an employment contract are:
1. the personal nature of the work performed,
2. remuneration for the work,
3. the employee’s subordination in the process of performing the work,
4. the continuous nature (durability) of the mutual obligations of the entities,
5. a specific distribution of liability for non-performance or improper performance of obligations (risk of the employing entity).
If you perform work under a mandate contract, but it has the above characteristics, you may be entitled to the rights arising from the employment relationship.
What can an employee do?
An employee who suspects they may be a party to a „hidden” employment relationship is entitled to file a lawsuit to establish the existence of an employment relationship (Article 189 of the Code of Civil Procedure in conjunction with Article 300 of the Labor Code). The burden of proving the existence of an employment relationship rests with the employee.
If you have doubts as to whether your mandate contract is actually an employment contract and what steps you should take, it is best to contact a professional. The heir must prove the fact of forgiveness in court proceedings, and it is permissible to prove the fact of forgiveness with any available evidence, including private documents and the testimony of witnesses called to the case.
- Can a mandate contract actually be an employment contract?
- Termination of the contract by mutual consent and the right to remuneration
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