Employment contracts with foreigners. Part 1: conclusion and termination
Efforts to obtain documents legalising a foreigner’s work and stay in Poland often entail a state of uncertainty, particularly concerning the date when the documents can be obtained.
But foreigners increasingly condition acceptance of an offer of employment on conclusion of an employment contract (or possibly some other document containing a commitment to hire the person and confirming the terms of employment) prior to commencement of the process of legalising their work and stay in Poland. This gives rise to significant practical problems.
Firstly, under the well-established view in judicial decisions, an employment contract may not be concluded subject to a condition (whether a “suspensive” or “dissolving” condition). Thus it cannot be stipulated in an employment contract that it enters into force on condition of the foreigner’s obtaining a legally required permit and (if applicable) visa. If the parties wish to conclude an employment contract, they must to do definitively and unconditionally.
They must also consider the need to dissolve the contract if the documents required by law are not obtained. Thus it cannot be agreed in an employment contract that it is automatically dissolved in the event of the loss of, or failure to obtain (by the foreigner, or by the employer for the foreigner), permits or visas required by law for working legally in Poland. The applicable regulations do not provide for, and thus do not allow, automatic termination or dissolution of a contract in such instances.
The end of the employment relationship between the employer and the foreigner in such situations will require formal dissolution of the contract, and all relevant regulations on dissolution of employment contracts will apply. It will thus be necessary, among other things, to serve on such an employee a notice of termination of the employment contract, containing (in the case of a contract for an indefinite period) stated grounds for termination (which in this case would be loss of, or failure to obtain, the right to work and/or stay in Poland), while observing the termination notice period.
One method for avoiding these difficulties may be to first (until legalisation of work and stay in Poland is obtained) conclude with the employer a preliminary agreement, often functioning in the form of a letter of intent issued by the prospective employer and accepted by the candidate, setting forth the key terms of employment. But this will not always be possible (due to the requirements in the proceedings for issuance of a permit) and acceptable to the parties. It will also not be risk-free (as such a preliminary agreement may give the employee a right to pursue certain claims against the employer).
Magdalena Świtajska
