An apparent employment contract does not always violate the law

dailyblitz.de 1 year ago

Zdjęcie: pozorna-umowa-o-prace-nie-zawsze-narusza-prawo

The appearances are not always linked to a violation of the law, but in any cases they can be classified as such, especially erstwhile they aim to extort social safety benefits. What are the consequences of an apparent employment contract? This is discussed below.

An apparent legal act, in accordance with Article 83(1) of the civilian Code, means a declaration of will addressed to the another party, which, although deposited with its consent, is ineffective due to appearance. If specified a message has been made in order to hide another legal act, its validity shall be assessed on the basis of the characteristics of that hidden act. The appearance of a declaration of intent shall not affect the effectiveness of a paid legal act carried out on the basis of that declaration if, as a result, a 3rd organization acquires a right or is exempted from the work unless it acted in bad faith. In accordance with Article 300 of the Labour Code, this provision besides applies in the context of labour law.

The apparentity is [...] a defect in the declaration of will consisting of an incompatibility between the act of will and its outward appearance, while the parties agree that the message does not have legal effect. The declaration of will of the parties must not then give emergence to legal effects corresponding to its content, as the parties themselves do not want this [judgment of the ultimate Court – civilian and Administrative Chamber of 23 June 1986, I CR 45/86].

Apparent employment contract a mistake, deception and threat

W The civilian Code besides mentions another flaws in the declaration of will:

an mistake – if the content of a legal act is wrong, the legal effects of its declaration of intent can be avoided; however, if the declaration of will was made to another person, it is only permissible to retreat from its effects if the mistake was caused by that person, even without his fault, or if he was aware of the mistake or could easy be noticed (this regulation does not apply to a legal act free of charge); only an mistake can be invoked to justify the presumption that if the declaration of will had not acted under the influence of an mistake and assessed the substance reasonably, he would not have made a message of that content (Article 84 of the civilian Code);
trick – if the another organization has induced a mistake insidiously, evasion of the legal effects of a declaration of will made under the influence of an mistake may besides happen if the mistake was not material, as well as if it was not related to the content of the legal act; a 3rd party's trick is unambiguous with the party's deception, if the another organization knew and did not notify the another organization or if the legal act was unpaid (Article 86 of the civilian Code);
a threat – who has made a declaration of will under the influence of an unlawful threat of another organization or a 3rd party, may evade the legal effects of his or her message if it is apparent from the circumstances that he or she may have feared that he or she might be in serious individual or property danger (Article 87 of the civilian Code).

In a situation of mistake and deception, unlike acting on appearance, the individual who makes a declaration of will intends to produce legal effects resulting from this statement, but lacks adequate cognition of the accompanying circumstances. However, in the event of a threat, the declaration of will takes place under compulsion, which is not always the case in the case of an apparent legal act.

As regards sickness benefits, the individual in employment during incapacity for work due to illness shall first have the right to the sickness pay referred to in Article 92 of the Labour Code and, after the periods laid down in that provision, to the sickness allowance. These benefits amount to 80% of the wage that the individual receives for work, but in cases where incapacity to work or incapacity to do work results from certain situations specified as pregnancy, medical examinations or accident on the way to or from work, then they amount to 100% of the salary. The detailed rules for determining the basis for the assessment of these benefits are laid down in the Law of 25 June 1999 on social safety cash benefits in the event of sickness and maternity.

Sickness benefits shall be payable to the individual for the period of his/her incapacity for work due to illness or inability to execute work, but not for more than 182 days, unless incapacity is caused by tuberculosis or occurs during pregnancy, then he/she shall be entitled for a maximum of 270 days. After the sickness allowance has been exhausted, the individual shall besides have the right to a rehabilitation allowance, which shall proceed until his/her ability to work has been restored, but no longer than 12 months. The amount of this benefit depends on the duration of its granting and is 90% of the basis for the assessment of the sickness allowance for the first 3 months, and then 75% of that basis, unless the incapacity to work falls during the pregnancy, then it is 100% of that basis.

Apparent employment contract to extort sickness benefit

Motivation for the signing of a contract of employment for fake purposes may mainly consequence from the desire to get an unauthorised sickness benefit. In specified a situation, the parties do not intend to actually establish employment relationships, but simply want to make the appearance of employment, so that, in the event of confirmation of incapacity for work, 1 of the parties who is an worker (i.e. a individual covered by social insurance in the event of sickness and maternity) can benefit from the sickness benefits. However, not all worker’s illness just after signing a contract of employment proves its appearance. In most cases, there are no grounds for suspicion of an apparent agreement. In order to establish that there has actually been an incorrect conclusion of the employment contract, it is essential to show that the parties were aware from the very beginning that the contract was not intended to supply a real job, which excludes their interest in the actual performance of the contract.

In its judgement of 29 June 2017, III UK 172/16, the ultimate Court – Chamber of Labour, Social Insurance and Public Affairs stated: The employment contract is concluded for appearance and cannot so constitute a title to be covered by occupational social insurance if, erstwhile making declarations of will, both parties are aware that the individual identified in the contract as an worker will not supply work and the individual identified as an employer will not benefit from its work, i.e. erstwhile the parties presume in advance that they will not exercise their rights and obligations fulfilling the content of the employment relationship. The apparent conclusion of a contract of employment (Article 83(1) kc) does not affect the provision of work in the sense that the employment is not carried out at all (the ‘employee’ does not supply work at all), or is carried out on a basis another than a contract of employment (in peculiar under a civilian law contract), or is simply faked (some actual activity is performed by a ‘employee’ but has no effect in the form of an employment relationship) [...]. In the case law of the ultimate Court, the view is that it is not possible to accept the appearance of declarations of will to conclude a contract of employment erstwhile an worker has taken up the occupation and has performed it and the employer has accepted it [...]. However, it is not adequate to do any work, for the work provided for the employment relation is important. If specified work is carried out, there is mostly no reason to charge circumvention or abuse of the law, i.e. to enter into employment for social safety benefits against the expected incapacity to work in connection with pregnancy. The appearance of the contract resulting from Article 83 kc in conjunction with Article 300 kp occurs when, despite the conclusion of the contract, the work is not provided at all, possibly the actual circumstances of its performance do not fulfil the characteristics of the employment relationship. This does not constitute a social safety title at the time [...]. The case law of the ultimate Court has rightly established that the appearance of a legal act is simply a factual condition which is to be determined by the courts in substance examining the case. It shall include the content of the declarations of intent, the intention to produce legal effects or the absence of specified intention and the act of disclosing the apparent nature of the legal act.

The consequence of stating the appearance of the employment contract is, in the area of sickness insurance benefits, the right of ZUS to claim reimbursement of the unduly collected sickness benefit, with specified a request being addressed to the individual who received the benefit (an apparent worker) or to the payer (an apparent employer) – the choice belongs to ZUS (cf. ultimate Court resolution of 11 December 2019, III UZP 7/19).

As it follows from the above, an crucial indicator to measure whether the employment contract is apparent is the actual performance of the job. It is not only adequate to meet the obligations arising from the contract in order to pretend that it is being carried out and to mislead 3rd parties (including the insurance body) that the contract is concluded and respected in accordance with the law. The minimum performance of the contract is not based on the rule of the exchange of benefits, as the parties to the contract do not have a real intention to carry out their obligations from the outset, but simply search to make a appearance of their performance so that the insured individual can benefit from insurance privileges.

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