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Home NEWS establishment of an employment relationship by a labor inspector

Establishment of an employment relationship by a labor inspector

A draft act was submitted to the Sejm giving labor inspectors the power to establish an employment relationship by way of a decision. The draft also sets out the procedure to be followed in cases of appeals against the decision establishing the existence of an employment relationship.

Employment relationship - employment contract and civil law contract

Pursuant to Art. 22 § 1 of the Labor Code, by establishing an employment relationship, the employee undertakes to perform work of a specific type for the employer and under his direction and at the place and time designated by the employer, and the employer to hire the employee for remuneration. This is the definition of an employment relationship included in the provisions of the labor law. A very important feature of an employment relationship is the very nature of the relationship between the parties and the content of the contract, not the name of the contract itself. The consequence of the definition of an employment relationship is the employment of an employee, i.e., the effect of concluding an employment contract, regardless of the type of such contract: employment contract for a trial period, for a definite period or for an indefinite period. By signing an employment contract, the provisions of the Labor Code must be applied. In a situation where the nature of the work performed under the conditions of the existence of features of the employment relationship, it requires the signing of an employment contract.

On the other hand, there are employments of non-employees, i.e., referring to the work performance on the basis of one of the civil law contracts, e.g., mandate contract, contract for specific work, contract for the provision of services or a managerial contract. In such a situation, the Labor Code does not apply because the terms of civil law contracts are specified in the Civil Code. The consequence of the employment of a non-employee is the lack of employee rights, such as vacation leave or sick pay, because the contractor (a party of a civil law contract) is not an employee by law.

Control over civil law contracts

The correct use of civil law forms of work is subject to control by the National Labor Inspectorate, a body appointed to control and supervise compliance with labor law. The tasks of this institution include supervision and control of compliance with the provisions of labor law, in particular provisions concerning, inter alia, the employment relationship and the right to bring actions, and with the consent of the person concerned - participation in proceedings before the labor court in cases for establishing the existence of an employment relationship.

If it is found as a result of the inspection that in a given situation the work is performed without concluding any contract, or despite calling the contract a "mandate contract" or "contract for specific work", the features of the legal relationship between the parties indicate that an employment relationship has been established, the labor inspector may bring a given person, including the contractor or the performer of a work, an action to establish the existence of an employment relationship.

According to the draft, labor inspectors will have the right to establish the existence of an employment relationship if it is found that the legal relationship between the parties, contrary to the contract concluded between them, has the features of an employment relationship. The determination would be made by way of a written decision issued by the district labor inspector. The decision would include, inter alia, determining the amount of remuneration with an indication of the remuneration components. The decision would have the same effects as those resulting from the conclusion of an employment contract and would be immediately enforceable. The employer would be entitled to appeal against the decision to the district court.

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